OPINION bv
Mr. Justice Gordon:There is no material question of fact in this case, except that which arises from the lease of the 5th of October, 1881, the drafts offered in evidence, and the actual measurements on the ground, concerning which there is no dispute. This simplifies the contention very much, and relieves us from the consideration of any but the seventh exception. The exception embraces that, part of the charge of the court below which is set forth as follows:
“As a question of law, I charge that the grant on the part of the plaintiff included the soil of the alley way, subject to the easement of the alley to the easternmost of the houses; that by the terms of the lease the alley way was included, because the factory extended over the alley way. The grant extends to the eastern line of the easternmost house. Upon both material points raised by the defendant, I instruct the jury that the law is with the defendant, and against the plaintiff, and that the defendant was right in preparing the deed to include the soil of the alley.”
This, of course, approves the description of the premises as found in the deed tendered for execution to Eliza Jane Barnett,as executrix and- trustee of the estate of Thomas Barnett, deceased, by the defendant, Benjamin M. Plummer, in execution of the option of purchase as found in the lease above stated. *38This description, so far as is material to the case, appears as follows:
“Beginning at a point in the southwesterly corner of Ninth and Need streets, in the first ward of the city of Philadelphia, thence extending southwardly along the westerly line of the said Ninth street, 124 feet, more or less, to a point on the easterly line of Flora street; thence extending northwardly along the east line of the said Flora street, 55 feet, more or less, to a fence; thence extending eastwardly along said fence, 30 feet 4% inches, to a point; thence extending northwardly 25 feet to a point, being at the head of a certain alley, 3 feet 7 inches wide, which leads northwardly into Peed street; thence extending westwardly, on a line and crossing the head of said alley, 3 feet 7 inches, to a point in the center of brick wall on the westerly line of said alley; thence extending northwardly along the center of the said wall 26 feet on the southerly line of said Heed street; thence extending eastwardly along the southerly lino of said Peed street, and recrossing said alley, 97 feet 3% inches, to a point on the westerly line of said Ninth street and place of beginning . . . together with the free and common use, right, liberty, and privilege of the said alley as a passage way and water course, in common with the owners, tenants, and occupiers of the other lots of ground bounding thereon at all times thereafter, forever; and together with the right to build over the said alley way, as at present, leaving 8 feet headway in tire clear.”
Turning now to the lease, we find the description of the property demised to be as follows: “All that portion of the lot situate on the southwest corner of Ninth and Reed streets in the city of Philadelphia, with buildings, stables, and other appurtenances thereon erected, and late used as a starch factory; said lot being 90 feet, more or less, on Peed street, 105 feet, more or less, on Ninth street, and exténding on a line at right angles with the said Peed street, 124 feet, more or less, on Flora street, 55 feet, more or less, on Flora street to a fence, and then passing along said fence, 34 feet, more or less, to a point; and from thence along another portion of said fence, by a line at right angles to Peed street, 50 feet, more or less, to said Peed street, as per accompanying plan, it being understood and agreed that this does not include the lot on the southeast comer of Peed and Flora streets, with two dwelling houses thereon erected; *39said lot being 34 feet on Need by 55, more or less, on Flora street; the above-described premises to be occupied and used by bim for' manufacturing purposes, for tbe term of three years, witb tbe privilege of five if be so desires, to commence and be computed from tbe first day of November, a. d. 1881. . . . It being understood and agreed tbat tbe lessee takes tbe buildings as they now stand.”
It will be seen by comparing tbe descriptions, as above set forth, that that in tbe deed varies from tbat in tbe lease in two essential particulars:
1. The line of tbe factory lot on Need street, as called for in tbe lease, is 90 feet, while tbe same line in tbe deed is 97 feet 314 inches.
2. Tbe deed, in order to include tbe alley, requires tbe deflection of tbe eastern line of tbe dwelling lots at a right angle, thus making a new line 3 feet 7 inches in length not found in the lease. But more than this, when we look at tbe drafts, we find that, including tbe alley, tbe north line of tbe dwelling lots falls short of its distance, as called for in tbe lease, nearly 5 feet, while tbe same line of tbe factory lot excluding tbe alley has an excess of nearly 4 feet, so tbat this lot has all tbat can be legally demanded for it.
Finally, tbe lessee was to take tbe buildings “as they now stand,” and as tbe factory did not stand on tbe alley, but on its east line with tbe upper story extending over it, it seems to us very clear tbat tbe lease did not include tbe passage way, and if so, it was improper to attempt to compel the plaintiff to convey tbe fee thereof. Under tbe facts here stated, we think it quite clear that tbe court erred in charging the jury as it did, and as tbe defendant, from tbe lapse of time, can now have no standing to defend this action, unless be can find something more pertinent to tbe issue than he has as yet exhibited, we need not consider the other exceptions.
Tbe judgment is reversed, and a new venire ordered.,