No. 352 April Term 1976, Appeal from the Judgment in Favor of Defendant (Judgment N.O.V.) entered Dec. 8, 1975, of the Court of Common Pleas, Civil Division, Forest County at No. 20 May Term, 1974.
Edward G. Petrillo, Warren, for appellants.
H. Robert Hampson, Warren, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs, J., concurs in the result.
[ 251 Pa. Super. Page 563]
Appellants, Carl and Genevieve Lachner, sued appellee, Carl Swanson, in ejectment. The jury found for the Lachners. The lower court, however, granted Swanson's motion for judgment n. o. v. on the ground that as a matter of law Swanson had proved a mutual mistake.
The following diagram (not to scale but prepared by this court from the surveyor's plan in the record) may prove useful.
[ 251 Pa. Super. Page 56459]
Swanson's sister, Edla Swanson Niklas, conveyed to him the "Gilfoyle School Lot" (Diagram: ABCD), on which was an old schoolhouse (Diagram: shaded area). This lot was 165 feet (Diagram: AB) by 247.5 feet (Diagram: AD). Swanson owned adjoining land to the west (Diagram: "Swanson"). In 1963 Swanson deeded most of the Gilfoyle School Lot to his sister Irene Howell and her husband Gibson Howell, retaining, however, a parcel 165 feet by 49.5 feet (Diagram: ABFE); thus the Howells owned a parcel 165 feet by 198 feet (Diagram: EFCD).*fn1 The Howells owned, and still own, land adjoining this parcel to the north and east (Diagram: "Howell").
Sometime in 1971 Swanson built himself a house (Diagram: cross-hatched area) on what he apparently thought to be the property he had retained from the lot conveyed to the Howells. In fact, by an error not explained at trial, the house straddled the eastern boundary of Swanson's property (Diagram: EF), extending 32 feet onto the lot that Swanson had conveyed to the Howells.
[ 251 Pa. Super. Page 565]
In December 1971 the Lachners came house-hunting. Swanson told them that the old schoolhouse (by then converted to a residence) was available, and that they should see Edla Niklas about it. Niklas showed the Lachners the 1963 Swanson-Howell deed, from which Mr. Lachner noted that the property was 165 feet deep with a frontage of 198 feet. After inspecting the property the Lachners decided to buy it. By a deed prepared by Swanson's lawyer, who used the 1963 deed as a model for the metes and bounds, the Howells conveyed their parcel (Diagram: EFCD) to the Lachners.*fn2 It is undisputed that the Howells, who have lived for many years on Long Island, New York, completed this transaction entirely by mail.
Sometime in mid-1972 the Lachners apparently became curious about exactly where the boundaries of their land lay. They had a survey made, and it revealed that their western boundary cut through Swanson's house (Diagram: EF). After some discussion with Swanson about whether he would pay them rent for the land on which his house encroached, the Lachners brought this action; ...