author: Gibson, C. J.

text:
    Maule v. Weaver.
    A. conveyed to B,, by a deed recited to be an indenture inter partes, to which they had interchangeably set their hands and seals. In the deed was contained a covenant on the part of B. to pay A. a rent reserved out of the land. A. alone sealed the deed, and B. accepted the deed and entered; and by a subsequent deed conveyed the land subject to the rent. Covenant does not lie against B., because he did not seal the deed.
    Certificate from the Nisi Prius.

      Jan. 27. The only question in this cause was whether covenant would lie. In 1832, Weaver conveyed a larger lot to Maulé, reserving a ground-rent which he assigned to Stillé. In May, 1836, a deed, styled in the premises an indenture between Maulé of the first and Weaver of the second part, concluding “ in witness whereof the said parties have hereunto interchangeably set their hands and seals, the day and year first above written,” ivas sealed and signed by Maulé alone. That deed recited the prior deed and the assignment of the ground-rent, and conveyed part of the same property to Weaver under and subject to the payment of the whole of the ground-rent, with a covenant by Weaver with Maulé to pay the said rent and keep Maulé and his assigns owners, of the residue of the land, indemnified therefrom. The action was on this deed.v In the same month, Weaver conveyed by deed to Wager and others subject to this ground-rent.
    The defendants gave evidence that the purchase was made by Weaver and nine others, and the title was taken by him to be conveyed to Wager in trust to partition the land. In that partition the lot subject to pay the rent was allotted to one Heybcrger. None of the parties went into exclusive possession, but Weaver accepted the conveyance for the benefit of all the parties; and they paid the rent for some time.
    The plaintiff proved payment by himself of a certain amount of the rents to Still?, and a demand of Weaver.
    Burnsidé, J., ruled the action could be maintained, and the entry of Weaver for himself or partners bound him personally.

      Fallon, for plaintiff in error.
    Covenant does not lie against a party not executing the deed; it is the form of the instrument and not the entry which gives the action. The apparent exception of an assignee arises out of his privity of estate, and there it runs with the land. The point was in fact decided in Wilson v. Buchman, March Term, 1846: Kearney v. Tanner, 17 Serg. & Rawle, 96, 2 Barr, 397, 6 Cow. 445; Stabler v. Cowman, 7 Gill & Johns. 288; Platt on Cov. 10, Chit. pl. 115; 1 Met. & Perk. Dig. § 326, 687.

      Williams, contra.
    Weaver is named in the premises, and he has by a subsequent deed admitted the acceptance of the estate created by the deed, which is recited to be inter partes. From this the presumption is de jure, that there existed a counterpart of the indenture sealed by Weaver; E. I. Co. v. Lewis, 3 Car. & Payne, 358: or the seal which is affixed should be considered that of both parties. Wilson v. Buchman is misstated in the Law Journal; the facts were, A. conveyed to B. who conveyed to C. with a covenant to pay A., and it was held that A. could not sue on that covenant. There are many cases where covenant lies, though there be no actual scaling. An entry under a deed containing a covenant by the grantee, is equivalent to sealing; Ewre v. Strickland, Cro. Jac. 240; Brett v. Cumberland, Id. 522. A mere acceptance of a deed-poll, which is matter of record as a royal patent, is equivalent to scaling: Touch. 177, 178. In Co. Litt. 230 b, 231 a, § 374, it is stated — demise to R. and D. D. sealed; R. did not, inasmuch as he had agreed, and R. was not joined; writ in covenant was abated. To the same effect is 5 Rep. 16; 1 Roll. Abr. 517. So in 2 Roll. Rep. 63, three were enfeoffed; one did not seal but entered; he is liable in covenant: Com. Dig. Covevant, a; 1 Saund. Pl. & Ev. 389. The cases in which it does not lie is where there is no express agreement to take subject thereto. The liability of the assignee is upon this principle!: by the entry, he agrees to be bound by the covenants running with the estate. Even on a deed-poll it will lie: Green v. Horne, 1 Salk. 197, 1 Roll. Abr. 517; Chancellor v. Poole, 2 Doug. 764. This rent was the essential part of the consideration, and the agreement was directly with the plaintiff: Staines v. Morris, 1 V. & B. 8; Hawkins v. Sherman, 3 Car. & Payne, 459; Burnett v. Lynch, 5 Barn. & Cres. 589.

      Reply.

    Where there is a signing after such a clause as this, the name opposite the seal indicates the adoption of that seal, only by the party signing: 1 Chit. Pl. 116.

      Feb. 9.
   Gibson, C. J.

How it came to be thought by the profession at an early day, and to be handed down to the present, that an action of covenant might be maintained against the grantee in a deed-poll under any circumstances, or against any one else w'ho had not sealed it, I cannot imagine. It appeared to us in Wilson v. Buchman so evident on principle that it could not, that we ruled the point in a dozen of words, and directed the case not to be reported, as it seemed to contain nothing which could be of use as a precedent; but in that we wrere mistaken. Though the principle of that case has been recognised as a general one, but subject to exceptions founded on the royal prerogative, or the customs of particular places, it seems to have been thought that in all cases where a grantee takes an estate by a deed-poll, he may be compelled to perform the conditions of the grant by an action of covenant instead of an action of debt or assumpsit; and this supposition had its root in the case obscurely stated in Co. Litt. 331 a; but it is clearly shown by Mr. Platt, the only lawyer who has searched the original roll, that there has been a prodigious misconception of tho language of Lord Coke, which was predicated, not of an action of covenant, but of an action of debt. Yet the same misconception existed in the mind of Chief Justice Abbott, in Burnett v. Lynch, by which, however, he affirmed the principle to which he supposed the case puf by Lord Coke to be an exception. But the singularity of the exception ought to have sent the profession to the YearBooks for the original cases to which references were given, and in which they would have found that the action in each of them was not covenant hut debt. It ought to have occurred to them that forms of pleading are touchstones of the law, and that the most dexterous pleader would find himself unable to make a successful profert of a deed-poll as the act of one who had not sealed it. Mutual covenants may be contained in the same instrument; but each party must seal and deliver his own exactly as if they were contained in several parts of it. Mr. Platt is apprehensive that the contrary has been too long sanctioned by eminent compilers to be now shaken; but it has merely floated in the professional brain without an adjudged ease to support it, or any thing better than the obiter dietum of a very distinguished Chief Justice, who took it as he found it set down in the digests and text-books. On the contrary, in Lock v. Wright, Stra. 571, it was held that mutual covenants cannot arise out of a deed-poll, because it is not the act of both parties, and the grantee on it. is liable in an action of debt. Forms of action are founded in technical reason, and it is greatly important that they be kept to the line of technical congruity, else we should fall into a distressing state of uncertainty and confusion. A proof of this is the act of 1806, which, though it did well in abolishing the fiction <|n ejectment, introduced much unnecessary litigation as to forms of proceeding in the actions of debt and assumpsit, which are not entirely settled at the end of forty years.

But a more plausible argument is, that as the body of the instrument is in the form of an indenture, and contains a recital that it was interchangeably signed and sealed, the seal of the one should be taken for the seal of the other. So, indeed, it would, if the other had signed, or his adoption of the seal were proved by evidence aliunde ; for instance, by the oath of one who saw it. Subscribing is intrinsic evidence to authenticate the seal, the signature attached to it being the party’s particular mark to individuate it as the one affixed by him; but as signing is not a part of the execution, but only evidence of it, it follows not that the sealing may not be proved by evidence extrinsic to the deed. What evidence of adoption have we here ? Nothing but the recital that the parties had signed and sealed, which was not allowed in Taylor v. Glaser, 2 Serg. & Rawle, 502, to supply the place of an actual seal. In that case, however, there was no actual seal,' and here there is one; but whatever inference of adoption might else be drawn from the recital, is overborne by the fact that the grantor wrote his name to authenticate his seal, and the grantee did not. Now, though I do not entirely concur in what was said in McDill v. McDill, 1 Dall. 63, and in Long v. Ramsay, 1 Serg. & Rawle, 72, that the signing of a deed is now the material part of the execution, I admit it is the most powerful evidence of the joint or separate ensealing of it; and that had the grantee in this instance also subscribed his name, he would have been bound as a covenantor. In the absence of that and every other direct proof, we are bound to say he executed no deed on which an action of covenant can be maintained against him.

Judgment reversed.


source: Caselaw Access Project

author: Burnside, J.

license: Public Domain

text:
    Winebrener’s Appeal. Brewer’s Appeal.
    Assignee for creditors buying at his own sale, which was to be clear of encumbrances, and abandoning because a mortgagee would not release the difference between the amount of his lien and the bid, is chargeable with the amount of his bid.
    But the assignee in such case is to be allowed commissions, as if he had complied with his bid.
    And he is not chargeable with rents received after that time.
    Mortgagee proceeding against the land does not lose his claim to the fund with which the assignee is chargeable.
    Bail for stay of execution paying the judgments is entitled to subrogation as against general creditors.
    From the Common Pleas of Philadelphia.

      Jan. 28, 31. In Oct. 1839, Curtis made a general assignment to Winebrener in trust to sell and pay creditors. Among the property assigned, was certain real estate appraised at $1000, subject to a mortgage to Sulger of $7000, and a second one to Miller of $3000. On the first of these there were arrears of interest $1800, and on the last $684, at the time of the sale. In Sept. 1840, the property was offered for sale at auction by the assignee, under advertisement that it would be sold clear of all encumbrances. At that sale Miller bid $11,250 ; but it was knocked down to Lawrence, who was the agent of Winebrener, at $11,250. It was found by the jury, on a feigned issue directed, that Lawrence purchased for Winebrener, and that he abandoned the purchase because of an alleged loss of some of the title-papers, of which, however, there was no proof, and because Miller declined releasing the difference between the amount due on his mortgage and the amount of the bid. Miller held the guaranty of Robb and South for his mortgage, and, fifteen months after the abandonment of the sale by Lawrence, of which he had notice, and which sale he did not attempt to enforce, proceeded against the property on his mortgage, and sold it by the sheriff. The proceeds proving sufficient to pay the first mortgage only, Miller received from Robb and South $3000, the amount due to him on the mortgage as principal, and assigned them his claim.
    Winebrener had been surety for Curtis on several judgments, which he paid and claimed to be subrogated.
    The court directed that he should be charged with the amount of his bid by his agent, Lawrence, as if he had complied with the purchase, with interest, to the filing of the auditor’s report. From this was deducted his commission, and the amount due on the two mortgages, which, as found on a feigned issue, was less than the amount of Winebrener’s bid, with interest added; the amounts due on the judgments paid by the assignee as surety, which had been a lien on the land, were also deducted, so far as the amount of his bid would reach.
    The exceptions by Winebrener resulted in these, that he was not chargeable at all; but, if he was, the amount of his bid should be applied to the judgments held by him in preference to Miller’s mortgage.
    Brewer, a general creditor, excepted and claimed that the differ.enee between the price at the sheriff’s sale and the amount of Winebrener’s bid should be distributed among the creditors generally ; that Winebrener was entitled to no preference on account of the judgments paid by him as surety ; that he was not entitled to commissions, and was chargeable with rents received after his bid.

      Olmstead and J. M. Read, for Winebrener.
    If the assignee is to be considered a purchaser, it can only be with the same rights as a stranger, and the conditions being “ clear of all encumbrances,” he was not bound to abide by his bid unless the mortgages were released, since the price did not cover them: 4 Johns. Ch. 629. But we contend this was not a purchase by the assignee for himself, but a withdrawal of the property merely, which it was his duty to do, if he considered it was going at all under value: Mortlock v. Buller, 10 Ves. 309. [Rogers, J. — If that question is open, do not the facts show an intent to become a purchaser ?] The assignee might have said he could not sell for less than the encumbrances, and his advertisement was equivalent to that, especially as it was his duty not to permit it to go at less than the appraised value: Bramley v. Alt, 3 Ves. 627. Since the refusal of Miller to do his part towards the completion of the title, it does not lie 'in his mouth, or that of his assignees, to insist upon the purchase : Hampton v. Speckenagle, 9 Serg. & Rawle, 212; Moore v. Shelly, 2 Watts, 257; and his subsequent silence on the abandonment would also postpone him, for he was bound to give notice to Winebrener of his intention to hold him bound, or, at all eventSj '.not, put it out of his power by selling at sheriff’s sale: Carr v. Wallace, 7 Watts, 394; 4 Watts & Serg. 323; 13 Serg. & Rawle, 318; 17 Serg. & Rawle, 366; as to the right to commissions, they cited Hoopes v. Brinton, 8 Watts, 73, and Diettrich v. Heft, 5 Barr, 87.

      J. Fallon, for the general creditors.
    The trustee knew his liability, and there can be no doubt the eestuis que trust may hold him bound: Lighty v. Shorb, 3 Penna. Rep. 451. But the fund is misappropriated. Miller and his assignees could only claim on the ground of affirming the sale; but this they have not done, but the contrary, and by proceeding against the land has elected to waive the prior sale. The difference, therefore, with which the assignee is chargeable, cannot go to them, but to the creditors generally. Nor has the assignee any lien under the jiidgments which he paid as bail for stay of execution: Armstrong’s Appeal, 5 Watts & Serg.’ 356. The commissions on the sale of the real estate should not be allowed, since he denied his liability, and it is only after tedious litigation that he has been charged: 4 Watts, 79, 420; 8 Ves. 371; 4 Serg. & Rawle, 116. He should also be chargeable with the subsequent rents or interest on his bid.

      Williams, for South and Robb.
    Had he permitted Miller to take on his bid, the mortgage would have merged; but, refusing that and buying in his own name, he is chargeable: Guier v. Kelly, 2 Binn. 294. This profit is an accessory to the value of the house assigned, and is distributable as the proceeds would have been. To forfeit the right of Miller, would require clear evidence of a demand for the release of the surplus and a refusal: Crest v. Jack, 3 Watts, 238; Hepburn v. McDowell, 17 Serg. & Rawle, 383; Robinson v. Justice, 2 Penna. Rep. 23; Alexander v. Kerr, 2 Rawle, 88. The assignee is to be treated as a stranger; if he declines paying, the mortgagee had a right to proceed,; and if subsequently damages, or the difference, were recovered from the purchaser, he may look to that for his loss, since it is only by treating the sale as perfected, on the terms agreed upon, that Winebrener -is chargeable.

      April 29.
   Burnside, J.

After a careful examination of the errors assigned by David Winebrener,. we think there is no good reason for changing the judgment of the Common Pleas. We have come to the same conclusion in the matter of the appeal by John W. Brewer, and direct the judgments and decrees of the Common Pleas to be

Affirmed.


author: Coulter, J.,

text:
    Commonwealth, ex rel. Webster, v. Fox.
    The enlistment of minors in the army of the United States is void under the act of Congress: and the return to a habeas corpus that he is held as a deserter, is immaterial.
    The state courts have concurrent jurisdiction with the courts of the United States in such cases.
    Desertion by one whose enlistment is absolutely void, may be punishable in certain cases; as if it occurred in the face of an enemy, or in the enemy's country, where camp followers are subject to martial law.

      Jan. 29 — -Feb. 5. Habeas Corpus. The return stated, that the prisoner had enlisted in the army of the United States, had deserted, and surrendered himself; and the matter had been decided by the Court of Common Pleas., It was proved that the prisoner was the minor son of the relator, who had never assented to the enlistment.

      Todd, for the relator.
    The only question is, is .the fact of desertion material. The court below considered themselves bound by the decision in Commonwealth v. Gamble, 11 Serg. & Rawle, 93, on that point. But since the enlistment is void unless assented to by the father, the desertion is no breach of the contract, but a mere declaration of an intention not to be bound — a disclaimer of the contract. In Grace v. Wilbur, 10 Johns. 453, it was so held; and the settled rule is, there can be no binding agreement prohibited by statute; 17 Mass. 281. In 1 Mason, 77, counsel agreed there could not be a criminal desertion if the enlistment was illegal: 5 Hill, 16.

      Pettit, contrá.
    Is the contract void or voidable ? If the latter, the party is liable for his acts done, until it was lawfully avoided; for it is settled, that a minor cannot elect to avoid his contract during minority: Zouch v. Parsons, 3 Burr. 1794. The power of the United States to enlist minors is not disputed; but it is proliibited without the parents’ consent. A subsequent assent ratifies the contract, as was expressly ruled in Commonwealth v. Camack, 1 Serg. and Rawle, 87. The enlistment being, then, only voidable by the parent, will this court permit the minor to escape from the criminal charge ? This was decided in Commonwealth v. Gamble, 11 Serg. & Rawle, 93. Walker’s Case, Am. Jurist, 1830, is analogous : there the term was up five days; but the court refused a discharge while the prisoner was held under a charge for a crime committed during his enlistment. There was then no statutory provision on this subject. The same rule was applied to an apprentice in 7 East, 376.
    The previous hearing should have been considered binding; since all the courts have equal jurisdiction, and no appeal is given: Mercein v. Barry, 25 Wend. 64. It may be also doubted whether the United States courts have not exclusive jurisdiction of this matter, it being an alleged contract with the United States: 1 Mass. 86; 1 Wheat. 304; 2 Hall, L. J. 192; 9 Johns. 239.

      Feb. 19.
   Coulter, J.,

(after stating the case.) — The counsel for the United States interposes as an objection to the prisoner being discharged by this court, that we have no jurisdiction: that he can be discharged only by a court of the United States; and cites the case of Ferguson, in 9 Johns. Rep. 239, to sustain that position. That was an application to allow a habeas corpus in term time to the Supreme Court for the body of an enlisted soldier who was a minor, and the court refused to allow the writ, because it rested in the sound legal discretion of the court to allow or refuse it, and because application could be made to the United States Court. It is true that Chancellor Kent, then chief justice, states, in the opinion delivered by him, that the United States Court had jurisdiction, and that the state had not. But Judge Thompson plainly intimated, that the state court had jurisdiction, but declined to allow the writ, merely as a matter of discretion for the reason stated; that is, that application could be made to the United States Court: and the other judges concurred with him, expressly reserving their opinion on the question of jurisdiction. The case, therefore, is not an adjudicated case in favour of the position taken by the counsel. But the Supreme Court of New York, in the matter of Carlton, 7 Cowen, 471, expressly adjudicated that they had jurisdiction, and discharged upon a writ of habeas corpus, a minor, who was detained and restrained of his liberty by an officer in the army of the United States, as an enlisted soldier. The state courts of Massachusetts have maintained that they have jurisdiction in such cases: Commonwealth v. Harrison, 11 Mass. Rep. 63; Commonwealth v. Cushing, Ibid. 67. In Virginia, the general court ruled, that the state courts had concurrent jurisdiction with the courts of the United States, in all cases of illegal confinement under colour of the authority of the United States, Avhen that confinement was not the consequence of a suit or prosecution pending in the courts of the United States: Sergeant’s Constitutional Law, 287. In Pennsylvania, the jurisdiction of state judges and state courts, has not before been doubted; and from the case of the Commonwealth v. Murray, 4 Binn. 487, down to the present term, numerous cases have occurred in which it has been exercised, some of them reported, and many more unreported. Our statute of 18th February, 1785, sec. 13, provides that the writ shall issue in all cases when any person, not committed or detained for any criminal or supposed criminal matter, shall be confined or restrained of his liberty, under any colour or pretence zvhatsoever; and imposes tho like penalties for not granting the writ as are imposed by the previous sections when the person is committed or detained for any criminal or supposed criminal matter. This is in accordance with the principles of the common law, by the provisions of which the writ of habeas corpus ad subjiciendum is the prerogative of the citizen; the safeguard of his person, and the security of liberty— no matter where or how the chains of his captivity were forged— the poAver of the judiciary in this state is adequate to crumble them to dust, if an individual is deprived of his liberty contrary to the law of the land. If the laws of the United States authorize the detention of the minor, he must be remanded; but if they do not, he must be discharged. By the act of 16th March, 1802, see. 11, it is enacted in the proviso, that no person under the age of twenty-one years shall be enlisted by any officer, or held in the service of the United States, without the consent of his father, guardian, or master, first had and obtained, if any he have, &c.; and inflicts a penalty specified in the act, upon the officer who shall enlist or hold such minor. There is no mist or obscurity about this phraseology ; it is as plain as tho English language can make it. So, tho enlistment and holding of the minor, under the circumstances mentioned in the act, is against the law, and the officer who enlisted him is guilty of an offence for which he may be amerced by his government. A penalty inflicted by statute for an act, implies a prohibition of the act, so as to make a contract relating to it Aroid: Mitchell v. Smith. 1 Binn. 118. Here there is not only a penalty imposed, but tbe act is declared by the statute to be illegal. A contract against the laws of the United States, or of this state, cannot be enforced in the courts of this state: 6 Binn. 321; 4 Serg. & Rawle, 159. In the case of Carlton, 7 Cowen, 471, before referred to, although the minor had represented to the officer enlisting him, that he was over twenty-one years of age, and had no father or guardian, the court declared the contract and enlistment void, and-’discharged the soldier. I will not say that Congress may not declare the enlistment' of minors to be lawful and valid; but they have not done so in relation to the army of the United States. A case of pressing emergency may occur, which will induce them to do so. When our country is invaded by a foreign foe, and the great and essential principles of liberty and self-government are in danger of destruction, perhaps they will. But until Congress interposes, we must take the law as we find it, and regard the claim which the law of God, of nature, of the state, and of the United States, gives the father to the services of his child, until he -arrives at the age of majority, and which renders the minor unable to make a valid contract. Under the circumstances of the case, without the consent of his father, guardian, or master, there is no case in our books which interdicts this view of the case. We are, therefore, of opinion, that the minor could not make a valid contract under the circumstances, and that it was and is void. In the case from 11 Serg. & Rawle, 93, which was an enlistment into the naval service, with respect to which the act of Congress is different, inasmuch as boys are somewhat essential to that service, in order that they may learn the duties which require an apprenticeship, the chief justice, in delivering the opinion of the court, says, the contract is valid where it is not positively forbidden by the state itself, and puts that case on the ground of the contract being allowed by law. In the case of enlistment into the army, the contract is positively forbidden by the law of Congress. We regard the circumstance of the minor having left the custody of the officer, or deserted, as making no material difference in this case. The contract of enlistment, under the circumstances, (the minor having a father, who had a right to his services at the time,) was not binding on the minor, and he might leave the service. It was probably in view o'f this category, to wit, that the minor might choose to leave the service, or be required by his father, that the act imposed a penalty on the officer to the amount of the clothing, bounty, and pay of the minor, for enlisting him without the consent of his father. An indenture of apprenticeship, executed by a minor without the consent of his father, is not binding on the infant; 4 Watts, 80: and it does not appear from the return of the officer, that the minor is under arrest for the crime of desertion, and is to' be tried by a court-martial. That might possibly make some difference ; if he was in process of trial, this court would, perhaps, not look beyond or behind the proceedings which were to bring him before even a military court. But the observations of the chief justice on this subject in the case of 11 Serg. & Rawle, it must be remembered, were predicated on an enlistment in the naval service, where the contract of the minor was not prohibited, but authorized, and where the officer returned that he was under arrest for the crime of desertion.

In the presence of an enemy, or in an enemy’s country, even camp-followers would probably be amenable to martial law; for if they were not, the safety of the army might be somewhat jeoparded by their desertion to the enemy. It could only be in that light that a person unlawfully enlisted and held without authority of law, could be amenable to military punishment. But this is not a case of that kind. Nor is it apprehended that a case of that kind will be brought into this court, as we may be allowed to hope that a hostile army will never be within our borders. But if the case, or one to be ruled by such high necessities, should occur, the court will decide it.

The prisoner is discharged.


text:
    Sergeant v. Ingersoll.
    Oti the 9th October, 1818, R. being the owner of land subject to a ground-rent, eonvoyed to I. free from the rent, which R. covenanted to extinguish within the period allowed by the original deed, or any period to which the right of redemption might, bn extended. On the 31st of October, R. purchased the rent, but took a conveyance to J. S. I. then sold part of tlio land, reciting in his deed that it was purchased from R. clear of encumbrances; and on his deed was endorsed a release from the rent, by J. S., of the portion thus sold, reserving his rights out of the residue. After the execution of the deed by I. and the release endorsed thereon, but before either was recorded, J. S., conveyed the rent to E. S. for valuable consideration. In this deed was recited the endorsement of the release endorsed upon the deed of J. Held, there is no constructive notice by these deeds to affect E. S.
    But if E. S. purchased from R., she was bound to inquire of R. and J. S. why the title was in the name of S. S,; and as she would then have learned the equitable ownership of the rent by R., and his covenant with I., she cannot enforce payment of the rout after the ultimate period has elapsed for the extinguishment of the rent by 11. under liis covenant with J.

      Jan. 31 — Feb. 1, 2. This was an action of covenant on an apportioned ground-rent by Mrs. Elizabeth Sergeant, the assignee of the rent, against Ingersoll, the tenant of-the land. On the trial before Burnside, J., it appeared that in 1811 O’Connor and wife conveyed to Mcllwhame, in fee, a large lot of ground in Philadelphia, reserving a ground-rent of $351 to the grantors in fee, redeemable within ten years on the payment of $5850. In 1814, Mcllwhame’s title to the land was conveyed to Seed, subject to the ground-rent. On thé 9th of October, 1818, Reed conveyed to Ingersoll, the defendant, «free and discharged from the aforesaid rent-charge, liens, and encumbrances whatsoever,” and with a further covenant by Reed that he would extinguish the said ground-rent of $351 within tlie time limited to extinguish the same, or within any extended time for extinguishing the same, and in the mean time indemnify and save harmless the said Ingersoll, his heirs, &e., from any charges, claims, or demands whatsoever thereof. The consideration of this conveyance was $11,250, which included the par value of the rent.
    On the 31st of October, 1818, O’Connor’s heirs conveyed the ground-rent of $351 to John Sergeant; and on the 6th of February, 1819, Sergeant by deed endorsed on the original ground-rent deed, covenanted to extend the period for redemption for ten years from that date.
    On the 30th of April, 1819, Ingersoll conveyed to Smith a piece of land, reciting it to be part of the lot conveyed by Reed to Ingersoll, clear of all liens and encumbrances. This deed was not recorded until the 21st of June, 1820. On the 1st May, 1819, John Sergeant, by deed endorsed on the last-mentioned one, and recorded with it, reciting that a larger lot, of which that conveyed to Smith was part, was subject to the ground-rent of $351 now vested in said John Sergeant, released the portion conveyed to Smith from the rent, provided that nothing should impair his right to recover the rent from the residue of the land.
    On the 3d May, 1819, John Sergeant, by deed reciting the creation of the rent, and his release of part of the land endorsed upon the deed from Ingersoll to Smith, and that the time for redeeming the rent had been extended, in consideration of $5265, conveyed the rent to Elizabeth Sergeant, the plaintiff.
    The defendant proved the rent had been purchased and paid for by Reed through John Sergeant; that Sergeant and Reed had married sisters, and that Reed had paid the rent until 1829.
    John Sergeant was the step-son of the plaintiff; and, on his examination, stated he was not the agent of the plaintiff in purchasing the rent, and never knew of it until called upon to sign the deed, nor did he know whether she employed a scrivener; that he received from Reed a paper to show that he (J. S.) had received none of the money, and had no interest in the matter. His understanding of the object of the arrangement with Ingersoll, was to give Reed the use of the money. «My position was that of a friendly trustee without interest: not even a trustee — merely to execute the papers.”
    . It was also in proof that Smith and Ingersoll purchased the lot together; and that on the winding up of the concern there was a balance due by Smith, which was deposited to Mr. Sergeant’s credit in bank, and by him paid to Reed.
    The plaintiff also gave in evidence a statement of the amount of the purchase between Reed and Ingersoll, signed by the former, in which it was stated that “ Ingersoll having paid to Reed the principal of the ground-rent, viz. $5850, in account settled this day, Reed agrees to extinguish the ground-rent within the time limited by the deed if the same is not extended, October 9,1818.”
    His honour instructed the jury that there was not upon the face of the deeds notice to Mrs. Sergeant of Ingersoll’s interest, nor sufficient to put her on,inquiry; and that there was not sufficient evidence to warrant the jury in finding that Mrs. Sergeant had notice, or notice enough to put her on inquiry.
    These were the only points passed upon by this court.

      G. Ingersoll, for defendant below.
    Reed conveyed the land, and so far as he could do so the rent. A few days afterwards he purchased the rent through his trustee: these are facts undisputed. The former case of Ingersoll v. Sergeant was argued upon the assumption there Ayas no notice, the rent being then considered a rent-charge, and released by the release of part. It is now alleged Mrs. Sergeant had knowledge or notice; if she had either of these as to Reed’s covenant and ownership, she is bound by it. .The release by J. Sergeant to Smith Avas endorsed upon the deed from Ingersoll to Smith, Avhich recited the fact of a purchase from Reed discharged of the rent. That release Avas in her title; for Avithout it she knew not what land remained liable to her rent, and she is affected by whateArer was contained in the deed: 2 Sug. Vend. 293; 2 Powell, Mortg. 575 a. The want of registry is immaterial; for she had direct notice of its existence, and aatus bound to examine,— and, doing so, she would have found the recital of discharge affirmed by her grantor a few days before the conveyance to her. The answer is, she-saw a personal covenant merely, and that by a stranger; but, certainly, under such circumstances, she was bound to inquire of the tenant in possession, and of the person from whom she was purchasing: 2 Powell, 564. What more could the tenant do than give the notice by registry that he claimed to hold clear of the rent, and await applications for information: Jaques v. Weeks, 7 Watts, 267; Brush v. Ware, 15 Peters, 112; Pow. by Rand and Coventry, 574, n. v; 1 Story, Eq. s. 400. The rule is there established that ordinary diligence is the first duty of a purchaser, until he meets with a defect, and then he is put to extreme caution and laborious diligence, as to which evéry case depends on its own circumstances. In Lewis v. Bradford, 10 Watts, 72, an agent on the land said to the purchaser, «Be sure you get a good title;” and that was held to put him on inquiry. In Billington v. Welsh, 5 Binn. 132, the purchaser Ayas presumed to knoAV of judgments, because they were held by his brother-in-law. In Clark v. Jenkins, 5 Pick. 280, a trial AAras directed whether the demandant was a man of more than ordinary acuteness. In Barnes v. McClinton, 3 Penna. Rep. 67, a general notice that there was a claim, and the purchaser would buy a law-suit, was held sufficient, an attorney being present to answer questions. But there was evidence of, actual knowledge in this case: Ingersoll, Reed, Smith, and John Sergeant, had actual knowledge; the receipt of the rent from Reed, and the fact that she purchased from him, which must have been the case since she did not purchase from John Sergeant, and the relationship of the parties, show she had knowledge. This alone AA'as sufficient to put her on the inquiry of Sergeant as to his title: 2 Freem. 137, pl. 171; Lodge v. Simonton, 2 Penna. Rep. 443; Hiern v. Mill, 13 Ves. 114, 122.

      F. W. Subbell and Scott, contra.
    The whole question as to notice from these deeds has been virtually decided in Ingersoll v. Sergeant. They were all in evidence, and the court decided Mrs. ‘ Sergeant Avas entitled to recover. But of what had she notice ? A mere personal covenant jby Reed to extinguish at a future time, while the deeds shoAved he had not acquired the capacity to perform his covenant. The contract was clearly an agreement to advance Reed the price of the rent, for which he covenanted to extinguish it at some future time. This time for performance or extension of the credit was the essential part of the contract. To deprive him of the power of dealing \yith the rent as his oavu in the mean time, is to take all effect from the contract; since he was bound by his contract with Ingersoll to keep down the accruing rent. It was in all respects similar to a drawer of a note due a year hence, who cannot have notes of the drawee maturing during the year and purchased by him, set off; for until the end of the year he is not a debtor. So here, until the end of the extended period for extinguishment, Reed’s covenant with Ingersoll was not broken. The possibility of merger is prevented by industriously taking the legal title in the name of a stranger. And the doctrine of this court, as settled in Helmbold v. Man, 4 Whart. 410, and Penington v. Coates, 6 Whart. 277, is, that the union of the two legal estates would not produce merger if the intent were otherwise. Here it is sought to work a merger, while neither legal nor equitable estates were united. [Gibson, C. Jb — Could Reed have distrained for the rent while equitable owner, and can the purchaser succeed to a better right ?] Equitable set-off might exist in such case; but it could not be extended to deprive him of his contract, which was essentially the right to deal with the rent in the mean time. The opposite construction leads to the absurdity that Mrs. Sergeant bought absolutely nothing, but went through the form of purchasing a ground-rent payable by Ingersoll, to effect a loan to Reed, of which loan there is no pretence of evidence.
    The effect of relationship, as presuming notice, cannot be weighed. In Billington v. Welsh, it was merely held that there being relationship, the possession did not necessarily imply adverse claim. Lightner v. Mooney, 10 Watts, 412, determines that a purchaser is not bound to examine the registry out of his own claim of title. Rut it really seems that this part of the case is stronger against the defendant. If the rent was extinguished, for what purpose was the release required by Smith ? That was upon his deed from Ingersoll ; and the consideration was the balance of account due by Smith to Ingersoll, who therefore must have known of it. This was, then, an affirmation of the existence of the rent, of which Ingersoll did not complain.

      J. M. Ingersoll, in reply.
    A purchaser is bound to examine the title of the tenant to see if at any time there was a merger and ex-tinguishment. There was upon this title a clear assertion of extinguishment of the rent by Reed; and the fact was that he did extinguish it, for so soon as he received the price he paid off the rent. From that time it ceased to exist, and Mrs. Sergeant purchased an annuity from Mr. Reed. The land was discharged from all liability, and the only security she obtained was the personal liability of her 'vendor.

      March 7.
   Gibson, C. J.

The direction that there was no evidence of notice to Mrs. Sergeant of the actual state of the title-was carried too far. There was, indeed, no constructive, notice from the face of the deeds, but the purchase was made by her either directly or through the intervention of a broker, and she is equally to be affected in either case if she is to be affected at all; for notice to an agent is notice to his principal. Mr. John Sergeant, in whom the legal title to the ground-rent was vested by conveyance from Mr. Reed’s vendors, testified that he was not Mrs. Sergeant’s'agent for the purchase of the beneficial interest from Mr. Reed; that the conveyance of the legal title to her was bróught to his office and executed; that he had given no order to have it prepared; and that his “ position was that of a friendly trustee — not even that — merely to execute papers.” From this it is clear he knew nothing and did nothing in relation to the transaction, except to execute the conveyance to her and sign a check in favour of Mr. Reed for the purchase-money which had been paid into bank to Mr. Sergeant’s credit. He was-no more than a conduit-pipe of the legal title, and bound to give it any direction that Mr. Reed might dictate. If Mrs. Sergeant did not purchase from Mr. Sergeant — and his testimony is that she did not — the inference to be drawn by a jury is irresistible that she purchased from Mr. Reed, and she would be affected by any thing that would put a keen-nosed purchaser on the scent of a flaw in his title. Then, what did she purchase from him ? He could sell his equitable ownership only, for the legal title was outstanding in a trustee; and the rudimental principle of. equity that he who purchases an imperfect or inchoate title must stand or fall by the case of his vendor, has never been shaken.Mr. Reed may have undertaken, not to convey the legal title to himself, but to procure it to be conveyed to her; and hence it is said, that when she actually received a conveyance of it, she became a bond fide purchaser of it. Had she purchased it of Mr. Sergeant, she would have undoubtedly been so; but the fact that she was dealing with one who had it not, was a circumstance to arouse suspicion and prompt an inquiry. A purchaser without notice must appear to have acted, not only with good faith, but with extreme vigilance, for equity refuses to protect the careless and the slothful. In Hiren v. Mill, 13 Ves. 114, notice that .the title deeds were in the possession of another, was held to be notice of an equitable claim by him on the estate; and in an anonymous case in 2 Freem. 137, pl. 171, the very point before us was decided. It was held that if the vendee knows at the time of the purchase that the legal estate is in another, he is bound to take notice of the trust. . Beyond this it is unnecessary to go, though cases could be produced in which the doctrine of vigilance was carried further. Now had Mrs. Sergeant demanded the reason why Mr. Reed had procured the conveyance to be made to Mr. Sergeant and not to himself, she would have been told that Mr. Reed himself had been the ground-tenant; that he had sold the ground encumbered with this ground-rent to Mr. Ingersoll, and had received the whole pur^ phase-money on the foot of his covenant to remove the encumbrance tvithin the time of redemption limited in the ground-rent, “ or within an extended time,” and to keep Mr. Ingersoll indemnified in the mean time; that he had bought it in to raise money on it by extending the time of redemption, while it should suit his convenience, still keeping Mr. Ingersoll indemnified according to his covenant ; and that he had procured the title to be vested in a friend, to prevent the ground-rent from being extinguished by a union in the same person of the hand to receive and the hand to pay. All this was fair in morals if it were not valid in law; and'as it would have been communicated had she demanded explanation, we must take it that she had it, for if it were refused, it was her course to abandon the purchase.

It has been argued, however, that she had notice of nothing which constituted a defence. But it will not be said that Mr. Reed could have enforced this ground-rent against Mr. Ingersoll in the face, of his own covenant, and it is difficult to conceive how his alienee, with notice, can stand on higher ground. Admitting, for a moment, that Mrs. Sergeant might have enforced it circuitously against Mr. Reed by throwing Mr. Ingersoll on his covenant — and for no other reason could she have remedy against Mr. Ingersoll, if at all — yet could she enforce the payment of arrears which accrued when Mr. Ingersoll was not bound to rely on his covenant ? It is certainly true that Mr. Reed was to have the use of the purchase-money during the time of redemption limited in the ground-rent deed, and during any further time accorded by agreement between Mr. Reed and his landlords; and that during the one and the other of these two periods, Mr. Ingersoll was to have no better security than Mr. Reed’s personal covenant. But could Mr. Reed change the original terms which both he and Mr. Ingersoll undoubtedly had in view, and by getting the control of the ground-rent enable himself by his agreement, not with his' landlords, but with his own trustee, to keep it an existing encumbrance on Mr. Ingersoll’s title during his lifetime ? Mr. Ingersoll might be perfectly willing' to hazard the prolongation of the time while it depended on the concurrence of the ground-landlords, who had no motive to lend them-elves to Mr. Reed’s convenience, but altogether unwilling to leave the matter to him alone. The words of a contract are to be applied to the circumstances attending it, as they stood at the time of the bargain, and not even to them in connection with a new element introduced into the case by one of the parties; and it is to be interpreted according to what they apprehended to be the subject of the agreement with its incidents as they then existed. This principle is exemplified in the Schuylkill Navigation Company v. Moore, 2 Whart. 477, in which the grant of a right to draw water from a canal through an aperture of so many square inches, was held not to give a right to increase the flow by the application of a conical tube called an adjutage. What, then, was the legal effect of Mr. Reed’s purchase on the terms of the contract ? It became impossible for Mr. Ingersoll to allow him the benefit of an extension by the ground-landlords, for they had ceased to 'be such; and the possibility of an extension beyond the ten years became impracticable and exploded. In effect, Mr. Reed himself abandoned it. When a covenantee has done an act to obstruct performance in his favour, the covenant shall be taken against him, to have been actually performed. This is a familiar principle. At the time of Mr. Reed’s conveyance to Mr. Ingersoll, the period of redemption in the deed had three years to run, during which he paid the arrears; but when the ten years were expired he became bound to extinguish the ground-rent altogether. In contemplation of law, Mrs. Sergeant Avas advised of this; and, standing in his place as his alienee with notice, she became bound not to press it, not because his covenant to do so ran with the ground-rent, but because the provision in the deed to Mr. Ingersoll was obsolete and gone, both as to Mr. Reed and herself, the occupant of his place. The time when Mr. Ingersoll was bound to trust to Mr. Reed’s personal responsibility had gone by, and she could no longer compel him to do so. Purchasing with notice of every necessary fact, she succeeded, not only to Mr. Reed’s rights, but his obligations; and her personal representative is consequently not entitled to recover the arrears of a quit-rent which he was bound to extinguish. It is an ungrateful task to cast a loss on one of two innocent parties which has been occasioned by the misfortiines of another equally innocent; but we have no other course than to dispense justice to them according to their legal advantages.

Judgment reversed, and a venire de novo awarded.