Eby v. Elder

Citations

• 122 Pa. 342
• 15 A. 423
• 1888 Pa. LEXIS 611

Syllabus

<p>1. If, when land is conveyed, it is openly and plainly subject to an easement of way, the existence of the easement will not be a defence to the payment of the purchase money, as a breach of the covenant against incumbrances implied from the words, grant, bargain and sell.</p> <p>2. When there was evidence that the passage over the land was not by any defined route, and also of admissions by the grantor that before the deed was delivered the grantee was assured that no right of way existed, the question whether the physical condition of the ground was plainly affected by the use of the way was properly submitted to the jury.</p> <p>3. The defendant in a scire facias upon a purchase money mortgage is not estopped from setting up a breach of the implied covenant against incumbrances in the existence of an easement upon the land, because by a verdict and judgment in his favor, under a plea of failure of consideration in a former action, recovery upon a bond for another part of the purchase money was defeated.</p> <p>4. Under the plea of failure of consideration, as distinguished from the plea of set-off, the defence is equitable, inherent in all the securities founded on the same consideration, and applicable to successive actions upon any of them till the defendant is compensated to the extent of his loss: Good v. Good, 9 W. 567, and 3 W. & S. 475, followed; Kane v. Fisher, 2 W. 246; Simes v. Zane, 24 Pa. 242, distinguished.</p> <p>5. Where a purchase money mortgage secnred separate bonds payable to each of several grantors, the right of the grantee to defend a suit upon, the mortgage by one bondholder for failure of consideration, is not defeated by a compromise settlement previously made by the defendant with the holders of the other bonds.</p>