The opinion of the Court was delivered, January 7th 1868, by
Agnew, J.Except in a single particular, we discover no error in the manner in which this case was submitted to the jury, and the findings of the jury upon the questions of fact submitted relieves the case of many of the legal points raised in the course of the trial.
But we think the court erred in that portion of the charge which refers to the reservation contained in the deed. It may be, and undoubtedly is, true that the deed tendered to Millingar did correctly describe the property offered for sale by the auctioneer and knocked down to the defendant. But the effect of the reservation was to take the portion reserved out of the description, and to make the property sold that much less. It was then as if the description had in terms excluded the part reserved. If the fact stated in the reservation be true, then Millingar would get that much less than he bid for. The reservation reads thus: “ Excepting, however, from the premises hereinbefore described, a narrow strip of ground lying on the west side of the second and third pieces hereinbefore described, which was appropriated by the Pittsburg and Coal Hill Coal Company under proceedings in the Court of Common Pleas of Allegheny county.”
Now, while the refusal of Millingar to take the property testified to by Robb was a waiver of a tender of the deed by the plaintiff, clearly it was no waiver of his right to have the property he bid for. The testimony is clear that the auctioneer offered to sell the lots described in the deed, and also testified to by McGowin and that Millingar bid off that identical property. But there is no evidence that the bidders were informed or that Millingar knew that a portion of two of the lots had been appropriated by the coal company, and that his bid was made on this *250footing. He bid for the property as a whole, in the lump, as it is said, and was entitled therefore to the whole. His bid was a single gross sum, and the contract an entire one. The case, therefore, did not rest on the waiver of the tender, hut upon the defect in the plaintiff’s title to the property sold. But the deed was itself the evidence of this defect. The plaintiff proved the tender and produced the deed.
The exception in the deed states that this portion was appropriated by the coal company through legal proceedings. This was, therefore, a direct admission of the fact that the plaintiff had no title to the part appropriated, and indicated the measure of her ability to perform. The defendant had the right, then, to refuse to take the property struck off to him on the ground that to a part of it the plaintiff had no title, or that it was subject to such an easement in it on part of the coal company as diminished its value.
Judgment reversed, and a venire de novo awarded.