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GEORGE LUPYAN v. JOSEPH LUPYAN (02/15/79)

decided: February 15, 1979.

GEORGE LUPYAN, JR., AND STELLA LUPYAN, HIS WIFE
v.
JOSEPH LUPYAN, APPELLANT



No. 448 April Term, 1978, Appeal from the Order Entered November 14, 1977, by the Court of Common Pleas, Civil Division - Equity, of Westmoreland County at No. 2601 of 1975.

COUNSEL

John N. Scales, Greensburg, for appellant.

S. Wayne Whitehead, Greensburg, and with him, Christ C. Walthour, Jr., Greenburg, for appellees.

Van der Voort, Spaeth and Montgomery, JJ.

Author: Montgomery

[ 263 Pa. Super. Page 306]

This proceeding in equity was brought primarily to establish the line which would divide a farm of 61.0346 acres, originally owned by George Lupyan (Sr.) and Mary Lupyan, his wife in Westmoreland County, as they intended that it be divided by two deeds they executed and delivered to their two sons, George Lupyan, Jr., one of the plaintiffs (and his wife Stella, the other plaintiff) and Joseph Lupyan, the defendant.

The deed to George Lupyan, Jr. and Stella, his wife, dated July 5, 1955 conveyed the westerly one-half of the farm by describing the entire farm of 61.0346 acres and then stating the part thereof being conveyed to be "the western half

[ 263 Pa. Super. Page 307]

    thereof containing 30 acres more or less to be determined by later survey."

The deed to Joseph Lupyan dated October 12, 1967 described and conveyed the entire 61.0346 acre farm, excepting and reserving from said deed 30 acres heretofore conveyed to George Lupyan (Jr.). This deed was made by George Lupyan (Sr.) as a widower, his wife Mary having died previously.

Subsequently, George Lupyan (Sr.) had a survey made of his farm, dividing it into two parts. This is known as the Samella survey. Based on that survey said George Lupyan (Sr.), then a widower, executed and recorded a deed for one part containing 30.83 acres described by metes and bounds to his son Joseph Lupyan and another to the plaintiff George Lupyan, Jr. et ux. for the other part, also described by metes and bounds. Said deeds dated July 22, 1975 were recorded July 25, 1975 before delivery to the grantees. George Lupyan (Sr.) died September 13, 1975.

In addition to the aforesaid deeds dated July 22, 1975, George Lupyan (Sr.) made an affidavit on June 16, 1975 in which he stated that his intentions at the time he made the two earlier deeds to his sons were that Joseph was to have 31 acres having erected thereon a two story frame dwelling house, frame barn and out-building commonly known as the farm and that George, Jr. and his wife were to have the remaining 30 acres which he described by adjoiners. The two parts were divided by an angular line as indicated by the Samella survey, not a straight line as shown on the Hartman survey which had been made at the request of the plaintiffs.

The apparent dispute in the case relates to the interpretation to be placed on the two earlier deeds. The plaintiffs contend their deed of July 5, 1955 contains no ambiguity and must be interpreted as intending a straight north to south line through the middle of the farm as shown by the Hartman survey. The defendant contends that it is ambiguous and that the lower ...


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