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ST. MARK'S EVANGELICAL LUTHERAN CHURCH v. BRIARCLIFF REALTY COMPANY (01/16/62)

January 16, 1962

ST. MARK'S EVANGELICAL LUTHERAN CHURCH
v.
BRIARCLIFF REALTY COMPANY, INC., APPELLANT.



Appeal, No. 30, March T., 1962, from decree of Court of Common Pleas of Dauphin County, No. 2402 Equity Docket, 1960, in case of St. Mark's Evangelical Lutheran Church et al. v. Briarcliff Realty Company, Inc. Decree affirmed.

COUNSEL

John H. Bream, for appellant.

William Fearen, for appellee.

Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).

Author: Montgomery

[ 197 Pa. Super. Page 119]

OPINION BY MONTGOMERY, J.

In this proceeding in equity, St. Marks Evangelical Lutheran Church (formerly Shoop's Lutheran Church), sought to reform the description of the property in a deed it had delivered to the Briarcliff Realty Co., Inc., conveying real estate in Lower Paxton Township, Dauphin County, Pennsylvania. Subsequent to the delivery of said deed the Church conveyed other adjoining "Cemetery" property to Joseph Missley and Galen H. Fisher, who were permitted to intervene in this proceeding as parties plaintiff, with the consent of the defendant.

After hearing, the court filed an adjudication allowing the desired reformation of the deed, which action was confirmed and adopted as the action of the court en banc, and a final decree entered from which this appeal was taken by defendant.

Defendant now argues (a) that title to real estate is involved and therefore appellee-plaintiff has a adequate

[ 197 Pa. Super. Page 120]

    remedy at law and there is no jurisdiction in equity, and (b) that the decree is not supported by the evidence.

The additional facts as found by the Chancellor may be summarized as follows: On September 16, 1957, the Church agreed to sell two tracts, (1) described as containing 11,580 square feet on the south side of U.S. Route 22, and (2) a triangular tract containing 8,070 square feet on the north side of same. Subsequently defendant became interested in (3), a small triangular strip of ground adjoining (1), but was advised by the Church that it did not know whether it owned the strip; however, in preparing the deed for (1) and (2) it undertook to convey whatever interest it had in (3); the description used was the perimeter description for all of the Church and cemetery property as used in the original deed to the Church, but excluded, by reference, the cemetery adjoining (2); U.S. Route 22 extends generally east and west and separates tracts (1) and (3) from (2) and the cemetery' Hollywood Street extends north from U.S. Route 22, is 50 feet wide including an unpaved strip approximately 10 feet wide along its easterly side, and was laid out and opened subsequent to the deed to the Church; the cemetery lies east of Hollywood Street and west of (2), but there is uncertainty whether its westerly boundary line is the easterly line of Hollywood Street, and whether its southerly line is identical with the northerly line of U.S. Route 22 as widened; if the lines of the cemetery and the highways are not identical, there exist narrow strips of ...


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