66 instant it is made, and it is of no importance that the grantee had notice of them when he took the title: Cathcart v. Bowman, 5 Pa., 317; Funk v. Voneida, II S. & R., 109. Such incumbrances are usually of a temporary character and capable of removal; the very object of the covenant is to protect the vendee against them; hence knowledge, actua! or constructive, of their existence, is no answer to an action for breach of such covenant. Where, however, there is a servitude imposed upon the land which is visible to the eye, and which affects not title, but the physical condition of the property, a different rule prevails." In Wilson v. Cochran, 48 Pa., 107, it was held that a purchaser with a covenant of general warranty cannot, before eviction, detain purchase money on account of a known encumbrance or defect," and that "whilst a right of way successfully asserted against a vendee may be a breach of covenant of general warranty, if the purchaser have bought without notice of it, yet the law is that he shall perform his engagements whenever his knowledge and the state of facts continue to be the same they were at the date of the purchase." In Friend v. Oil Well Supply Co., 179 Pa., 290, it was decided that, "where a continuous and apparent easement or servitude is imposed upon land, a lessee of the servient property, in the absence of an express reservation or agreement on the subject takes the property subject to the ease ment or servitude." In Howell v. Northampton Railroad Co., 211 Pa., 284, it was said that, "where the servitude is visible, the purchaser is presumed to have knowledge of it, and to have bought with this knowledge.' of way. But, conceding, for the sake of the argument, that the right of way was a defect, the undisputed evidence clearly shows that it was a known defect, and as there is no pretence of fraud on the part of the plaintiffs, the rule applies that, under such circumstances, the vendee cannot detain the purchase money: Youngman v. Linn, 52 Pa., 413. There was no express covenant in the conditions of sale, except that "possession and a legal deed of conveyance of the property will be given on or before April 1st, 1914, on receipt of the purchase money." Of course, this implied a legal title for the land and, as a matter of fact, no defect has been pointed out in the title, nor, as we have said before was there any encumbrance upon the land arising out of the taking of a portion of it by the Railroad Company for its right The case of Graybill v. Ruhl, 26 L. L. R., 113, is not in point, because there the proposed street had not been physically laid out under the Borough Ordinance. and there is no evidence that the plaintiff knew the situation when he made his purchase. Nor do I think that the fact that the railroad's right of way is included in the deed changes the situation in any respect. The plaintiff cannot make a good title to the land appropri ated by the Railroad Company under its right of eminent domain. The inclusion of that land conveyed none of the right of way and did no harm. At best, it transferred a possibility, which would perhaps have passed at any rate. But, as a matter of fact, the conditions of sale do not pretend to sell the land covered by the railroad tracks, but the farm of the plaintiffs, and nothing more; and a deed without it being good, that part was surplusage. Were, then, the plaintiffs bound to convey to Ramsey 16 acres of land? As has been said above, Ramsey knew this farm and its lines, and he had worked upon it. The sale was not by the acre, but as a whole. Does, then, the fact that it contained only 142 acres instead of 16 acres present a sufficient excuse for his refusal to pay the purchase price? In Riddle v. Foster, 32 Pa., 163, it appeared that a vendor had sold a tract of land for a gross sum, excepting a piece of 85 acres, exact measure, previously conveyed to a third party, the lines of which were visible on the ground. On a resurvey, the excepted piece of land was found to contain 90 acres and 97 perches. It was held by the Court that the vendee was not entitled to a deduction from the amount of the purchase money on account of an alleged deficiency in the quantity of land. In White v. Price, 202 Pa., 128, an agreement for the sale 66 It, therefore, appears to us that the verdict as rendered is correct, and that the rules for judgment non obstante veredicto and for a new trial should be discharged. Rules discharged. Davis v. City of Lancaster. Damages-Detention of payment — Interest. of land called for a farm containing | had any knowledge that the land deabout 77 acres of land, and contained re- scribed in the paper did not contain the peated references to the property as the quantity mentioned in the description, farm". There was no stipulation for but it was ascertained afterwards that a survey, nor any provision that pay- there was a deficiency of less than ten ment should be made for the actual con- per cent. of the estimated acreage, it tents, when thus ascertained, and there was held that the purchaser, who paid was no evidence of bad faith on the over the purchase money for the quantity part of the vendor. The purchaser was mentioned in the description and accepted familiar with the premises and the boun- title, could not recover in an action of daries. It was decided that he could assumpsit the amount of the deficiency. not claim an abatement of the purchase money because a survey showed that the tract fell short by over six acres. In Hassel v. Denlinger, 24 L. L. R., 323, it appeared that a vendor had executed with a vendee a written agreement to sell a certain tract of land "containing thirty-nine acres, more or less," for $5,460. The sale was not by the acre, but for a lump sum, and there was no provision for a survey and no evidence of bad faith on the part of the vendor. The deed which was tendered described the tract as containing 36 acres and 9 perches. It was held that the vendor was entitled to receive the amount of the purchase money in full. In Large v. Penn., 6 S. & R., 488, the question was whether there was a covenant that the quantity of land in a certain tract should amount to two acres and three-quarters, whereas in fact there was but one acre and one hundred and forty perches in it. Chief Justice Tilghman said: "It is the boundaries to which the grantee must look; he has a right to all the land within them. The quantity is matter of cal-defendant and rule. Bernard J. Myers, City Solicitor, for culation, and, be it more or less, it passes. There is no express covenant that the quantity in this case shall amount to two acres and three quarters of an acre, nor is there any implied covenant, because the quantity is introduced, not by way of covenant, but of description. In Reading v. Finney, 73 Pa., 467, it was held that a misstatement of the number of acres in a tract will not vitiate a sale of the whole; and in Landreth v. Howell, 24 Sup., 210, where a master sold in partition a tract of land described by metes and bounds, said to contain six acres, three roods and eight perches of land, more or less, at $2,500 per acre, and none of the parties to the transaction In an action for damages for land condemned by a city under the power of eminent domain, the plaintiff has a prima facie right to damages for detention of payment, and, in the absence of evidence that the plaintiff made an exorbitant or unreasonable claim, such damages should be allowed. Rule for a new trial. C. P. of Lancaster County, January Term 1914, No. 40. Coyle & Keller, contra. The charge of the court on the question. of compensation of plaintiff for delay was in strict accordance with the decisions of the Supreme Court. Rea v. P. & C. R. R. Co., 229 Pa., 106 at page 113. James v. West Chester Borough, 220 Pa., 490. Mengel v. Water Company, 224 Pa., 120. Mead v. Traction Co., 54 Super. Ct., 400. McPherson v. R. R. Company, 50 Super. Ct., 233. Stephens v. R. R. Co., 242 Pa., 606. Duffy v. York Haven Water & Power Co., 242 Pa., 146. Shevalier v. Telegraph Co., 22 Super. Ct., 506. There was not evidence in this case that the delay was caused by the grossly excessive demands of the plaintiff as in the case of Stevenson v. Coal Co., 203 Pa., 316 and Trustees of Kingston v. Coal Company, 241 Pa., 481. Myers said: They tore the place down June 26, 1915. Opinion by LANDIS, interest as they see fit to the verdict to P. J. The plaintiff was the owner of an irregular piece of land, on which were erected two two-story frame dwelling houses, situated at or near the corner of West Vine and West Strawberry Streets, in the City of Lancaster. On April 12, 1913, the Councils of the City of Lancaster passed an ordinance for the appropriation of this lot for street purposes, and, under the right of eminent domain, the property was, about April, 1914, entered upon and occupied by the City. Thereupon, after proper proceedings, an issue was framed to ascertain the value of the same, and, upon a trial duly had, a verdict was rendered in favor of the plaintiff for the sum of $2,450.00. Reasons were filed for a new trial; but, as the first two are general, the only one that needs consideration is the third, which asserts that the Court erred in its instructions to the jury upon the question of compensation for delay. Let us first see what was said upon this subject, and then briefly make reference to the law. In the Charge of the Court, it was stated: "The rule of law is, that, in cases of this character, interest is not recoverable as such, and, as a matter of fact, if the jury shall find that the demand made by the plaintiff, that is, the claim made by the plaintiff, was unreasonable, then he is not entitled to anything except the market value of the land at the time of the taking. But the taking was on April 12, 1913. I do not know whether the City went into possession at that time or not; I think not, because one of the witnesses said that, in the fall of 1913, there was a tenant in one of the houses. (Mr. compensate for the delay. This, of course, depends entirely upon the circumstances, and it must be determined by the jury." these instructions were incorrect? I do Could the defendant complain that not think so. They were, it will be found, in accord with the law as always heretofore declared by our Appellate Courts. As a matter of fact, the rule is not open to discussion, for this very question at issue has just been again determined by the Supreme Court. I refer to Hoffman v. City of Philadelphia, Advance Notes, p. 2, in Advance Reports of June 18, 1915, where it was held that, "in an action for damages for land condemned by a City under the power of eminent domain, plaintiff has a prima facie right to damages for detention of payment, and, in the absence of evidence that plaintiff made an exorbitant or unreasonable claim, such damages should be allowed." This seems to fit and settle the present case. The question of unreasonable demand was fairly submitted to the jury and was by them decided. See, also, Duffy v. York Haven Water & Power Co., 242 Pa., 146. The reasons for a new trial are now overruled and the rule discharged. Rule discharged. Legal Miscellany. Orphan's Court. The next session of the Orphan's Court will be on Saturday, September 11, 1915, at 10 a. m. American Bar Association. THE REPORT OF THE SPECIAL COMMITTEE TO SUGGEST REMEDIES AND FORMULATE PROPOSED LAWS TO PREVENT DELAY AND UNNECESSARY COST IN LITIGATION Of the report of committees of the American Bar Association, published in the July number of the American Bar Association Journal, one of the most interesting is the report of the Special Committee to Suggest Remedies and Formulate Proposed Laws to Prevent Delay and Unnecessary Cost in Litigation. This report, after calling attention to the fact that the Law and Equity Bill, suggested by it some years ago, and the Bill for Reviewing Constitutional Cases have been enacted by Congress, the former on March 3, 1915 [Judicial Code, § 274a274c], and the latter on December 22, 1914 [Amendment to Judicial Code, ch. 10, § 237], discusses the progress made during the last session of Congress in the effort to pass the Technical Error or Reformed Procedure Bill. That bill was recommended by the Association in 1911 and was originally introduced in Congress in 1912, as an amendment to section 269 of the Judicial Code of March 3, 1911, by adding at the end thereof the following: "No judgment shall be set aside or reversed or a new trial granted by any court of the United States in any case, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court to which application is made, after an examination of the entire cause, it shall appear that the error complained of has injuriously affected the substantial rights of the parties. The trial judge may in any civil case submit to the jury in connection with the general verdict specific issues of fact arising upon the pleadings and evidence, reserving any question of law arising in the case for subsequent argument and decision, and he and any court to which the case shall thereafter be taken on writ of error shall have the power to direct judgment to be entered either upon the verdict or upon the special findings if conclusive. upon the merits." It will be observed that the two sentences are entirely distinct and treat of Separate subjects. Objection was taken in the Senate to the practice of submitting special questions to the jury, upon the ground that in states where the practice prevailed it worked badly, as so many questions were submitted that the jury became perplexed and confused, and that even if the system worked well, it should be left to the legislation of each state, and, where the practice prevailed, the Federal courts sitting in that state would undoubtedly follow it. In view of this opposition the Committee consented to the bill's being reported in the House December 12, 1914, with the omission of the second sentence, and in that form it went to the Senate and was reported favorably on the 5th of January, 1915. The pressure upon Congress, however, of more important measures prevented its passage. Committee recommends that it be instructed to take measures to secure its introduction at the next session of Congress, and to take such steps as it shall deem expedient to secure its passage. The The Committee is of opinion that the proposition to provide a way in which questions of fact can be submitted to the jury for special consideration or special verdict should not be given up, and it, therefore, embodies substantially the principle contained in the second sentence of the original bill in a separate bill which it believes provides a convenient method for taking a verdict upon specific questions of fact arising at the trial, and will enable the appellate court to dispose of the case finally without the delay and expense of a new trial. This bill is to take the form of an amendment to the Judicial Code by adding the following | for divorce was instituted by the hussection: band on the ground of desertion, but the complaint was dismissed for want of equity. The Supreme Court of Arkansas, in Marshak v. Marshak, 170 Southwestern Reporter, 567, in affirming the decree, held that the agreement by the wife to live with the husband's par "Section 274d. At the trial of an issue of fact by a jury in any civil proceeding, when the determination of the matters in controversy or any of them shall depend on some question or questions of law raised at the trial, it shall be the duty of the judge, by putting parents was an antenuptial contract, withticular questions of fact to the jury or otherwise, to ascertain the facts necessary to enable the court finally to determine the said matters according to any decision that may be made of the questions of law, unless in the opinion of the judges such a course is unnecessary or inexpedient in the circumstances of the case. out binding force, it being terminated by and merged into the marriage contract which bound the parties to live together as husband and wife. It was also held that the refusal of the wife to live with her husband, under the circumstances, was not desertion. Use of Automobile. of automobiles for general family use, Probably few prospective purchasers observes Joseph T. Winslow in the Aulegal liability which may attach to them gust Case and Comment, reflect upon the And the court upon an application for judgment, if satisfied that it has before it all the material necessary for de- Owner's Liability for Injury Resulting from termining the said matters or any of them, may give judgment accordingly. But, if it shall be of opinion that it has not sufficient material to enable it to give judgment as to such matters or some of them, it may direct that the application and may grant leave to either party to by reason of damage or injuries resultintroduce and put into the record additional documentary evidence as to which no question of fact arises, and may, while retaining the verdict originally rendered, order a trial by jury of any questions of fact which the court shall decide are ma stand over for further consideration terial and which were not disposed of upon the first trial. Upon the said new evidence or the verdicts upon such trials the trial court or the appellate court shall have power to render final judgment and to make any further order as the case may require." Going Home to Mamma not Desertion. A wife, being unable to live happily with her husband at the home of his parents, went home to mamma, where she insisted on staying unless the husband would provide another home for her. The man's parents were well to do and did not need the services of the son, who was a hardworking man capable of providing a separate home for his wife. Before the marriage the wife agreed to live with her husband's parents. A suit ing from the use of the machine by members of their family. In view of the present state of the law and its apparent trend, however, it would appear a wise course, from a financial standpoint, for purchasers and owners of cars intended question, and to see to it that when they for such use to give attention to this they are at least in charge of persons are being used on the public highway competent to operate and manage them. has been sought to hold owners responThere are two theories upon which it sible for injuries resulting while their cars are being operated or used »y members of their families; first, upon the theory of respondeat superior, and, second, upon the doctrine of dangerous agency or instrumentality. Her Preference. Judge (in divorce case)-" Whom do you prefer to live with, my child-your father or your mother?" Child—" If you please, sir, which ever gets the motor car.' |