M. J. Mulhall, Pittston, Joseph A. Mulhorn, Wilkes-Barre, for appellants.
Fredric R. Gallagher, Louis Geo. Feldmann, Wilkes-Barre, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 168 Pa. Super. Page 566]
In this equity proceeding, brought by plaintiffs for the specific performance of a written agreement for the sale of land, the lower court sustained the defendant's preliminary objections and dismissed the bill. The court concluded that defendant properly had rescinded the contract since time was of its essence and plaintiffs had defaulted in the payments of purchase money stipulated therein. In our view plaintiffs' bill together with a proffered amendment, sets forth a good cause of action requiring an answer and disposition on the merits. The decree will be reversed.
This factual background is supplied in substance by the averments of plaintiffs' bill: The defendant, the sole owner of two small lots in a subdivision in Luzerne
[ 168 Pa. Super. Page 567]
County agreed in writing on April 14, 1945 to convey them to plaintiffs by special warranty deed for a total consideration of $900 payable $100 in hand and $20 on the 15th day of each month thereafter 'until the whole of the principal is paid' with interest. The agreement adequately describes the land to be conveyed, by metes and bounds as well as by reference to a recorded plot. Plaintiffs were in possession of the lots when the agreement was executed and have since made valuable improvements on the land. In addition to the downpayment of $100, plaintiffs made seven regular monthly payments of $20, leaving $600 as the remaining unpaid purchase price. Plaintiffs made no further payments to defendant when they learned of a judgment in the sum of $844.45, originally entered of record against the defendant by the Commonwealth of Pennsylvania, Department of Public Assistance, on January 31, 1941. The lien of this judgment was revived by sci. fa. to No. 135 March Term, 1946, and the lower court erred in refusing to allow an amendment to this effect under Equity Rule 49, 12 P.S. § 1221. Sollak v. North Belle Vernon Boro., 131 Pa. Super. 459, 200 A. 707.
Plaintiffs aver in their bill that 'several times since October 14, 1945' they have offered to pay the whole of the above balance of the consideration named in their contract 'providing the defendant Nellie Falaz * * * pay the Commonwealth of Pennsylvania, Department of Public Assistance' a sum sufficient to discharge the above judgment as a lien against the land. Thus it appears that on November 16, 1945, the date of plaintiffs' last payment, the amount of the judgment against the land to be conveyed (and defendant owned none other) exceeded the balance of purchase money to be paid by plaintiffs. Plaintiffs, subsequently, again tendered performance of their contract by offering to pay the above judgment of record in favor of the Department
[ 168 Pa. Super. Page 568]
of Public Assistance on delivery of a conveyance of the land to them by the defendant. Both of the above offers were refused by the defendant.
The decree in this case if allowed to stand would aid the defendant in perpetrating a deliberate fraud on the plaintiffs. If we accept the averments of the bill she intends to take advantage of the fact that plaintiffs have made valuable improvements on the land and would exact the total consideration of her sales agreement without payment of the judgment lien against the land. Under her contract she was obliged to deliver title to the land free from liens and a special warranty deed would not have relieved her from that obligation. A covenant of special warranty merely protects a grantor from ...