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7 Pa. Super. 310

Blatz v. Denniston

Superior Court of Pennsylvania

Decided May 9, 1898

Superior Court of Pennsylvania · decided 1898-05-09

<p>Appeal, No. 96, April T., 1898, by defendant, from judgment of C. P. No. 21, Allegheny Co., April T., 1897, No. 539, for want of a sufficient, affidavit of defense.</p> <p>Assumpsit on articles of agreement to sell real estate clear of incumbrances.</p> <p>It appears from the record that William H. Denniston, the defendant, by articles of agreement entered into with the plaintiff, agreed to purchase from the plaintiff certain lots of land and assume the payment of certain mortgages existing as an incumbrance against said lots. The plaintiff executed and delivered to Denniston a deed of general warranty for the lots aforesaid, and no reference whatever was made to said mortgages upon the lots described therein. Subsequently the mortgages were foreclosed and there was a deficiency of $405, and suit was brought upon the bonds against the plaintiff and judgment recovered against him.</p> <p>Defendant filed a demurrer to the statement, which was overruled. An affidavit of defense was then filed, admitting the facts as alleged in the statement and setting up that the agreement upon which the action was based was merged in the deed upon which the premises were conveyed and that said deed does not contain any covenant or agreement whereby defendant assumes any mortgage or other indebtedness. And that the assumption of the mortgage mentioned in said article of agreement upon which suit is brought, does not place any personal liability upon the defendant.</p> <p>The court entered judgment in favor of the plaintiff for want of a sufficient affidavit of defense. Defendant appealed.</p> <p>Errors assigned were (1) overruling defendant’s demurrer. (2) Making absolute the rule for judgment for want of a sufficient affidavit of defense.</p>

Relies on Stockton v. Gould

Affirmed · Decided 1898-05-09

¶1Opinion by

Porter, J.,

¶2We held in the case of Lehman v. Paxton, ante, p. 259, that an agreement to sell real estate “ clear of all incumbrances ” is not superseded by a deed executed pursuant to the agreement and containing only a clause of general warranty. That case rules the one before us. Here by agreement the purchaser of real estate covenanted to assume the payment of certain mortgages on the property to be conveyed. The grantee failing to perform his said promise, the grantor was obliged to discharge the balance remaining unpaid after a foreclosure sale by the sheriff under the mortgage. The grantor now sues the grantee for the amount the former was thus required to pay.

¶3A further authority for affirming the action of the court below is found in Stockton v. Gould, 149 Pa. 68. In that case the contracting parties agreed to exchange properties and assume the mortgages respectively thereon. One of the parties after the deeds were delivered, performed his agreement by paying off the mortgage which he had assumed. The other did not. The loss thus resulting was made the subject of a suit founded on the agreement of sale. A recovery wus had and sustained.

¶4We find in these authorities ample warrant for the entry of judgment by the court below, on the affidavit of defense.

¶5The assignments are dismissed and the judgment affirmed.

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