Edward J. McGinness, F. J. Tyrrell, Pittsburgh, for appellant.
W. McCook Miller and Kirkpatrick, Pomeroy, Lockhart & Johnson, all of Pittsburgh, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 170 Pa. Super. Page 308]
Defendant Land Company has appealed from a decree for specific performance of a contract for the sale of a lot situated in Mt. Lebanon Township, being one of the lots in the defendant Company's plan of lots called the Beverly School Plan.
On or about June 25, 1929, defendant entered into a written agreement to sell and convey to plaintiff the aforesaid lot for a total consideration of $2250. There was paid on account of the purchase price $225 on the execution of the agreement and the balance was made
[ 170 Pa. Super. Page 309]
payable in installments of $45 each upon the first day of each month beginning May 1, 1930, with interest on the deferred payments at the rate of six per cent per annum.
Pursuant to the agreement, plaintiff made payments on account of the purchase price in the principal amount of $1275, together with interest on the deferred payments to December 20, 1936, or a total of $1500, leaving an unpaid balance of $525. Defendant accepted the payments as timely.
On August 5, 1947, defendant requested in writing that payment of the balance of the purchase price be made not later than August 20, 1947, stating the amount due to be $525, with interest thereon from December 20, 1936, to August 20, 1947, or a total of $860.96. The statement contained a notation that 'Municipal Claims and taxes to date will amount to approximately $1200.00.'
As of the latter date there was a lien of record against the property for grading, paving and curbing by Mt. Lebanon Township pursuant to an ordinance enacted June 3, 1929. A contract for the work was let on July 15, 1929. The lien was entered on August 20, 1930, and has since been revived from time to time. The latest revival was in the amount of $844.15, including interest and lien costs. On the extended date for payment of the balance due on the purchase price, to wit, August 20, 1947, plaintiff made a tender in cash of the balance due, viz., $860.96, less $844.15, the amount of the municipal lien, and requested delivery of a deed for the property. Upon refusal of defendant to deliver a deed plaintiff filed his bill for specific performance. The decree will be affirmed.
Under the agreement of sale appellant was bound to convey the lot 'free from all encumbrances.' It seeks to justify its ...