Appeal, No. 404, Oct. T., 1961, from order of Court of Common Pleas of Lycoming County, May T., 1959, No. 695, in case of L. John Volkert et ux. v. J. Fred Swan et al. Judgment reversed.
William E. Nichols, with him Furst McCormick, Muir, Lynn & Reeder, for appellants.
Walter R. Rice, Jr., and Greevy, Knittle, Fisher & Rice, for appellees, submitted a brief.
Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).
[ 197 Pa. Super. Page 577]
The plaintiffs sued to recover money deposited or paid on account of the purchase price of real estate. Defendants claimed the right to retain these amounts as liquidated damages under the agreement of sale and judgment was entered for them on the pleadings.
The appellants contend that judgment should have been entered for them because the vendors' obligation to furnish title free and clear of all encumbrances was
[ 197 Pa. Super. Page 578]
violated by a recorded right of way to Pennsylvania Power and Light Company, given by the vendors prior to the execution of the agreement of sale with the appellants.
The agreement of sale provided: "It is also understood that a good and marketable title is to be furnished by the seller, free and clear of any encumbrances except as noted: none." Under the right of way agreement the vendors granted to Pennsylvania Power and Light Company, its successors, assigns and lessees: "... the right, privilege and authority to construct, reconstruct, maintain and operate its electric lines, including poles, wires, guys, stub poles, fixtures and apparatus upon, across, over, under and along property which we own or in which we have any interest along the highway commonly known as Pennsyl. U.S. 220, located in the Township of Muncy, County of Lycoming, State of Pennsylvania, and bounded
On the North by Raymond Fry, property.
On the East by Leonard Swartz, ...