Appeal, No. 120, April T., 1958, from judgment of Court of Common Pleas of Allegheny County, April T., 1957, No. 122, in case of Jeffrey Structures, Inc. v. Sebastiano Grimaldi et ux. Judgment affirmed.
Louis Vaira, with him Franklyn E. Conflenti, for appellants.
David R. Levin, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 186 Pa. Super. Page 438]
This is an appeal from an order of the Court of Common Pleas of Allegheny County entering judgment on the pleadings in an assumpsit action in favor of the appellee in the amount of Five Thousand ($5000) Dollars.
[ 186 Pa. Super. Page 439]
The action in assumpsit was brought by Jeffrey Structures, Inc., the appellee, to rescind an agreement for the sale of land and to recover the hand money paid to Sebastiano Grimaldi and Grace Grimaldi, his wife, the appellants, under the said agreement, and also to recover expenses alleged to have been incurred by the appellee company.
The appellants admit in the pleadings that they were and are the owners of certain real estate situate in Hampton Township, Allegheny County; that on June 28, 1955 they and the appellee company entered into a written agreement whereby they agreed to sell this land to the Jeffrey Structures, Inc.; and the appellee paid the Grimaldis $5000 hand money at the time of the execution of the agreement of sale.
By the terms of the agreement, the appellants agreed "to execute and deliver a good and sufficient deed of general warranty for said described premises... Title to the same to be good and free of all encumbrances with the exceptions of the reservation of sale of coal and mining rights as herein set forth."
The complaint alleges that the appellants are unable to perform their obligation because of the existence of certain encumbrances. The appellants admit the existence of these matters but deny that they are encumbrances affecting the marketability of the title.
The only one of the alleged encumbrances involved in this appeal is the fact that a deed in 1853 in appellants' chain of title contains a restriction providing that the sale of the property and the conveyance thereof shall become void and of no effect should the grantee, his heirs or assigns, at any time permit or suffer the premises or any part thereof to be used, occupied or enjoyed ...