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LIPSIE v. DICKEY (11/09/53)

November 9, 1953

LIPSIE, APPELLANT,
v.
DICKEY



Appeal, No. 145, March T., 1953, from order of Court of Common Pleas of Somerset County, 1952, No. 226, in case of William A. Lipsie, trading as Janice Coal Company v. George A. Dickey. Order reversed.

COUNSEL

Archibald M. Matthews, for appellant.

Leland W. Walker, for appellee.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Stern

[ 375 Pa. Page 231]

OPINION BY MR. CHIEF JUSTICE HORACE STERN

This action was brought in assumpsit to recover for the alleged breach of a covenant of warranty contained in a deed and of another warranty contained in a bill of sale. The litigation culminated in a jury trial at which the learned court below entered a compulsory non-suit and subsequently refused to take it off. Plaintiff appeals.

In a written memorandum defendant, George A. Dickey, agreed to sell to plaintiff, William A. Lipsie, "a tract of land in Jenner Township, Somerset County, Pennsylvania, containing 3.917 acres being the same premises conveyed by the Smokeless Quemahoning Coal Company by deed of October 7, 1949 and recorded in Deed Book Volume 404 at page 433 together with a tipple and all machinery and equipment, parts and accessories now used in the operation of the tipple..." for a cash consideration of $13,500. Plaintiff agreed "to buy the said tipple and land and pay" that amount. In pursuance of this agreement, defendant executed two documents; one, a deed for the land, and another, a bill of sale for "all the following items of personal property now situate and contained in a tract of 3.917 acres of surface this day conveyed to the buyer herein consisting of: Frame tipple with Link Belt light conveyor complete with miscellaneous number of spare or replacement parts for said conveyor,... Frame supply building excluding the contexts of said building..." There followed a long list of various pieces of machinery, equipment, tools and other items of personal property.

After plaintiff had made this purchase and paid the consideration money an action of ejectment was brought against him by owners of the adjoining premises who claimed that a portion of the tipple was situated

[ 375 Pa. Page 232]

    on their land. The action resulted in a judgment for the plaintiffs therein, it being decided that a portion of the tipple was in fact located on the adjoining land and did not belong to defendant at the time of his sale to plaintiff. Plaintiff claims that he has thus been deprived of any use of the tipple whatever because it is unworkable and worthless without the portion from which he was thus ejected and it is economically impractical to move to so that no portion would remain outside the land he purchased.

The deed given by defendant to plaintiff described the land conveyed as containing 3.917 acres, "all of which tract is represented by courses and distances on a survey attached to and made a part of this deed." It was further described as "Being the same premises... conveyed by the Smokeless Quemahoning Coal Company to George A. Dickey by deed dated October 7, 1949 and recorded in Deed Book Volume 404 at page 433." The deed contained a provision that "the said grantors to hereby Warrant the property hereby conveyed, unto William A. Lipsie, trading as Janice Coal and Coke Company, his heirs and assigns forever."

It is clear that plaintiff has no just cause of action against defendant on this warranty in the deed because, apart from the question as to whether it was meant to be a general or a special warranty, (as to which see Act of April 1, 1909, P.L. 91, sections 4 and 5), plaintiff received the identical acreage specified in the deed, namely 3.917 acres as mapped on the survey attached to the deed and being the same ...


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