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TAPLER v. FREY (06/11/57)

June 11, 1957

TAPLER
v.
FREY, APPELLANT.



Appeal, No. 111, Oct. T., 1957, from decree of Court of Common Pleas of Lehigh County, Sept. T., 1954, No. 1, in case of John Tapler, Jr., et ux. v. Mamie L. Frey, executrix of estate of Emma T. Achey. Decree affirmed; reargument refused July 8, 1957.

COUNSEL

Harry P. Creveling, with him David Freeman, for appellants.

Louise F. McCarthy, with her McFadden, Riskin, McCarthy & Holland, for appellees.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Gunther

[ 184 Pa. Super. Page 240]

OPINION BY GUNTHER, J.

This appeal is from the decree of the Court of Common Pleas of Lehigh County directing the reformation

[ 184 Pa. Super. Page 241]

    of a certain deed which omitted a portion of property from the conveyance. The facts as developed are not in dispute and may be summarized briefly as follows:

In August, 1927, Emma J. Achey owned a certain tract of land in Salisbury Township, Lehigh County containing four acres, strict measure. Prior to February 1, 1946, she sold a portion of said tract and subdivided the remainder into building lots which also were sold with the exception of lot numbered four, upon which a house was erected, and lots numbered five through nine, inclusive. These six lots constituted approximately an acre of ground. Lot number four is separated from the rest of the lots in question by Ruth Street, running generally east to west, and the remaining five lots run generally south of Ruth Street. On February 9, 1956, pursuant to an advertisement of a house and land for sale, plaintiffs, John Tapler, Jr. and Gertrude M. Tapler, called on Emma J. Achey and asked to be shown the property advertised. The next day, upon instructions of Mrs. Achey, Rudolph Duld, who was living with Mrs. Achey, conducted plaintiffs throughout the house and around the other lots in question. The four lots were referred to by Mrs. Achey as the "orchard out back" and, in the presence of Mrs. Martha Bernstein, she stated that the orchard went with the house.

Plaintiffs, on February 10, 1946, paid to Mrs. Achey the sum of one hundred dollars as down payment on the agreed purchase price of $5,500.00, and received a receipt dated February 11, 1946 which stated that the payment was on account of purchase of "property and house." Subsequent thereto, plaintiffs paid Mrs. Achey's attorney the sum of nine hundred dollars and gave a purchase money mortgage for $4,500.00, being the entire consideration agreed upon. On February 23, 1946, Emma J. Achey delivered to the plaintiffs a deed drawn

[ 184 Pa. Super. Page 242]

    by her attorney, reciting that the conveyance was subject to a purchase money mortgage. However, this description included only lot ...


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