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WOOD v. EVANITZSKY (12/27/51)

December 27, 1951

WOOD
v.
EVANITZSKY, APPELLANT



Appeal, No. 180, Jan. T., 1951, from judgments of Superior Court, Feb. T., 1951, No. 3, affirming decree of Court of Common Pleas of Wayne County, Jan. T., 1949, No. 60, in case of Herman G. Wood v. Joseph Evanitzsky et ux. Judgments reversed.

COUNSEL

Gerald G. Dolphin, with him J. Wilson Ames, for appellants.

Leigh B. Maxwell, for appellee.

Before Drew, C.j., Stern, Stearne, Bell, Ladner and Chidsey, JJ.

Author: Ladner

[ 369 Pa. Page 124]

OPINION BY MR. JUSTICE LADNER

This is an appeal from the Superior Court pursuant to an order allowing the same.

[ 369 Pa. Page 125]

The appellants are the defendants in a judgment entered by confession on a bond of $1,000 which accompanied a purchase money mortgage and the matter came before the court of common pleas on a rule to open judgment.

By a statutory form of deed dated May 27, 1947, plaintiff and his wife conveyed a farm to defendant and wife describing the same by metes and bounds with general warranty. The deed recited a consideration of $2,500 of which $1,000 was paid April 15, 1947, and $500 upon delivery of the deed together with a purchase money mortgage and aforesaid bond for the balance. There was no written agreement of sale but a receipt signed by the plaintiff was given for the first payment of $1,000. Prior thereto, viz., on February 21, 1947, the Governor had approved plans for the relocation of a state highway through the farm and on July 27th, after the property had been conveyed by plaintiff and his wife to defendants by the aforementioned deed the description of which included the bed of the relocated highway, the plaintiff executed a quitclaim deed to the Commonwealth and received $850 as damages for the land condemned by the Commonwealth.

The defendants claimed to be entitled to a credit against the purchase money mortgage for the $850 so received by the plaintiff from the Commonwealth. The common pleas court ruled that as the condemnation took place at the time the Governor approved the plans, under principles well settled by cases of which Smith v. Commonwealth, 351 Pa. 68, 40 A.2d 383 (1945), is an example, the damages belonged to plaintiff. This is so even though the land is conveyed without reservation before payment of the damages: Hunter v. McKlveen, 353 Pa. 357, 45 A.2d 222 (1946).

The defendants contended however, that since plaintiff had conveyed by metes and ...


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