
    Ruple’s Appeal. [Coleman, to use, v. Ruple.]
    On an application to open a judgment entered on-a penal bond for the purchase money of real estate, it appeared that the title to the land was originally in one Mylert, who, in 1862, granted to a steam railroad company, a right of way over the land in question. The deed for the right of way was recorded, and a plot of the land showing the right of way was also recorded. The railroad took possession and built a single track which was visible at the time of the conveyance from the plaintiff to the defendant. At the date of the indenture, a street railway company was in possession of the right of way. The deed from the plaintiff to the defendant contained a reservation of any right of way which might have been acquired by the street railway. The court below refused to open the judgment, on the ground that the defendant had at least constructive notice of the right of way. Held, not to be error.
    Feb. 27, 1889.
    Appeal, No. 213, July T. 1888, from a decree of C. P. Lackawanna Co., discharging a rule to open a judgment, wherein James W. Coleman, to the use of Jane De Witt, executri of Ezra De Witt, deceased, was plaintiff and Selden J. Euple was defendant, at Nov. T. 1887, No. 88.' Williams and McCollum, JJ., absent..
    The facts are stated in the following opinion, by Hand, P. J.:
    u There are no equities in this case which call for the interference of the court, or, upon the testimony shown, require that we should open this judgment. In fact, if there were any legal equities by way of defense, the amount is so small as to come within the maxim de minimis non curat. The facts shown in the case, beyond a doubt, settle any such defense as defendant sets up. On August 10, 1885, Coleman conveyed to Euple the lots in question, and took back a purchase-money mortgage which was assigned to the plaintiff,. De Witt. A right of way existed in favor of and, under all the evidence, presumably, in possession of the Delaware and Hudson Canal Co. over one corner of the lot. Euple claims a failure of title as to this right of way or an encumbrance, and seeks to deduct a pro rata part of the purchase-money, which would be a little over $10, but which he claims to show should be $400 or $500. The consideration of the two lots was $525, and the encumbrance did not exceed 90 feet out of 4,320 square feet. The title confessedly was originally in Amos N. Meylert. On February 12, 1862, Meylert granted to the Delaware and Hudson Canal Co. the right of way in question for its railroad track not exceeding 66 feet in width. The deed for right of way was duly recorded November 26, 1863. Meylert laid out his land and included these lots on a plot. This plot was recorded on January 6, 1871, and showed this right of way thereon and the interference with the land.involved in this controversy. The deed from Coleman to Euple reserved any right of way which may have been acquired by the .People’s Street Eailway Co. over these lots. The Delaware and Hudson Canal Co. had taken possession of this right of way and built their single track thereon prior to recording the Meylert plot. At the time of purchase, the track of the Delaware and Hudson Canal Co. was visible, and the* Street Eailway Co. was in visible possession of the alleged encumbrance. From the evidence, the possession of the Street Nailway Co. was temporary and, presumably, under, or by permission of, the Delaware and Hudson Canal Co. Under all the facts of the case, we think the conclusions of law are: that Nuple had at least constructive notice of this right of way; that the reservation in his own deed and possession of the Street Nail way Co. put him on inquiry, not simply how long the Street Nailway Co. was to occupy, but by what title. The presumption is, such inquiry would have given actual notice of what the record and conveyances in the line of title showed, that the Delaware and Hudson Canal Co. was in actual ownership and possession of the right of way. Under the circumstances, the equities are against the defendant. We remark, further, that the measure of damage is only the pro rata part of the purchase-money paid in the deed. This, as we have remarked, is very small. The rule in this case is discharged.”
    
      The assignment of error specified the action of the court in discharging the rule and in not opening'the judgment and allowing the defendant to make his defense thereto. ■ •
    
      John F. Scragg, for appellant.
    A defect or encumbrance upon land, not known to the vendee when he accepted the conveyance, may be set up as a defense to the payment of the bond given for the, purchase money, and this, although the deedgiven contains covenants of general warranty. Noland v. Miller, 3 W & S. 390.
    The appellant is entitled to a set off on account of encumbrance on the land. Hunt v. Gilmore, 59 Pa. 450; Earnest v. Hoskins, 100 Pa. 551.
    A failure of title is a complete defense pro tanto to a bond given for purchase money; White v. Lowry, 27 Pa. 254; Steinhauer n. Witman, 1 S. & R. 431; Tod v. Gallagher, 16 S. & R. 261; Hart v. Porter, 5 S. & R. 201; Sedgwick on Damages, 191; Good v. Good, 9 Watts, 572; Christy v. Reynolds, 16 S. & R. 258; Wolbert v. Lucas, 10 Pa. 73; Hood’s Ap., 5 Cent. N. 851.
    The onus of showing that the purchaser intended to take the risk lies on the vendor. Smith v. Sillyman, 3 Wh; 599; Friedly v. Scheetz, 9 S. & R. 161.
    The question whether the parties knew of the defect at the time ' of the transaction was for the jury. Murphy v. Richardson, 28 Pa. 288.
    It is only when a matter is deemed utterly unimportant, to carry out that the rule of de minimis operates. Davis v. Sabita, 63 Pa. 90.
    One who sells land on a description given by himself is bound to make it good, if untrue in a material part. Pfingston v. Loukle, 5 Kulp, 189; Miles v. Stevens, 3 Pa. 21; McCall v. Davis, 51 Pa. 431; Davis v. Sabita, supra; Davis v. Nuzum, 40 N. W. N. 491.
    
      S. B. Price, not heard, for appellee.
    Whatever puts one on inquiry amounts to notice, if the inquiry becomes a duty, as in the case of purchasers and creditors, and would lead to a knowledge of the requisite fact by the exercise of ordinary diligence. Notice, of ■a]'deed is notice of its contents. Jaques v. Weeks, 7 Watts, 267; 4 Kent’s Com., 179, 456; Hill v. Epley, 31 Pa. 331; Angier v. Schieffelin, 72 Pa. 106; Maul v. Rider, 59 Pa. 167.
    A purchaser'is presumed to have seen the register or record of ■previous conveyances. Woods v. Farmere, 7 Watts, 385.
    And he is affected with notice of facts in the line of his title. Beidelman v. Foulk, 5 Watts, 308; Ogden v. Porterfield, 34 Pa. 191.
    When a deed is recorded, it is constructive notice to all pur- ' chasers, and there is no difference between actual and constructive •notice. 3 Washburn on Real Property, 283, 285, 3d Ed.
    A plot of land or map, when recorded and mentioned in a deed, has the same effect as if fully set forth in the deed itself. Borough of Birmingham v. Anderson, 48 Pa. 253; McCall v. Davis, 56 Pa. 431; Trutt v. Spotts, 87 Pa. 339; McKee v. Perchment, 69 Pa. 342; Transue v. Sell, 105 Pa. 604.
    A public road is not an incumbrance on lands sold for which purchase money maybe defalked. Peterson v. Arthurs, 9 Watts, 152; Peck v. Jones, 70 Pa. 83.
    . Railroads are public highways. Railroad v. Norton, 24 Pa. 465; Trunick v. Smith, 63 Pa. 18; P. & C. R. R. v. S. Pa. R. R., 77 Pa. 173.
    March 18, 1889.
   Per Curiam,

The court below was entirely ri^ht in refusing to open, tliis judgment. The reasons for such •refusal are so fully set forth in the opinion of the. learned judge .who heard the case, that we are relieved from any discussion-of it.

The order is affirmed and the appeal dismissed at the costs of .the appellant.  