text:
    McCreery v. Hamlin.
    Testator having authorized his executors, after the death of his wife, to sell his real estate at public sale, and having further empowered them during her life, in a certain contingency, to sell his land, his wife, being executrix, was authorized by act of Assembly to sell and convey generally. A private sale by her is void.
    Judicial sales, and those authorized by either public or private statutes, must be at public sale, unless otherwise directed. And so of sales by trustees and others acting in a fiduciary capacity. Per Rogers, J.
    In error from the Common Pleas of Washington.

      Oct. 25. McCreery, by his will, after payment of his debts, devised his real estate to his wife for life, to be under her control and direction; and further, “ after the death of my wife I allow all my estate to be disposed of at public sale, and as soon as the proceeds is collected, it is my will that the proceeds be divided among my daughters.” He further declared, « after my decease, should my executors be of opinion it would be for the interest of my family to dispose of my real estate, and can satisfy the Orphans’ Court of this county -that it would be so, then, and in that case, I allow it to be sold and the money to be put at interest, to be at the disposal of my wife, in the same manner as the real estate before-mentioned,” and appointed his wife and Martin executors.
    By the act of 26th July, 1842, (p. 435,) Sarah McCreery, executrix, and widow of testator, was authorized “ to sell and convey, by deed, to the purchaser or purchasers, such parts of the real estate of which said Wm. McCreery died seised, situate, &c., as shall be found necessary to pay and discharge the debts now due from the said estate.” Provided, that before she should sell and convey, she should give bond and sureties, approved by the Orphans’ Court, conditioned for the faithful and proper application of the purchase-money. On the 10th August, 1842, she petitioned the Orphans’ Court, stating the act and her purpose of selling seventy acres of land, and tendering a bond, which she prayed might be approved. The bond was executed in a penalty of $2000, and is stated to have been filed.
    • In October, 1842, she sold the land to one of the defendants, who, in his answer to a bill of discovery, stated he purchased at her instance, and the price was $200, payable on April 1 following, and $360 in two equal annual payments; no money was paid, but bonds were given; Mrs. McOreery continued to reside on the land and receive the rents, and it was the understanding that the heirs of testator, or some one for them, should pay to his creditors the amount of his purchase, and the land should be conveyed to them.
    The plaintiff recovered a judgment against Sarah McOreery, under which the land was sold to plaintiff in July, 1844, who brought this ejectment. He further proved the existence of several prior judgments against her as executrix, and that there had been no public notice or knowledge of the sale to defendant.
    His honour instructed the jury that the private sale by executrix was unauthorized and void, and this was the only question argued here by

      Henderson and Meffandless, for plaintiff in error.

      MoEennan and Watson, contó.

      Nov. 1.
   Rogers, J.

Judicial sales of every description, whether by an order of the Orphans’ Court, under decree of a court of chancery, or by sheriffs’ or constables’ sales, are by public and not by private sale. And the same rule applies when it partakes of the nature of a judicial sale; as, for example, sales by trustees, assignees under the bankrupt or insolvent laws, or by executors or administrators in pursuance of a power contained in a will. Indeed it may be assumed as a principle without an exception, that unless otherwise specially directed, all property of a fiduciary character is required to be sold by public outcry. The rule has been thus established to prevent or check fraud, and because it is justly supposed to increase the price when there is free and open competition among the bidders. And there cannot be a stronger illustration of the wisdom of the rule than is here presented. For it manifestly appears, that by management and contrivance, redounding but little to the credit of all engaged in it, the creditors have been defrauded by a mock sale, and the title substantially vested in the executrix and her children at a mere nominal price, not one cent of which ever was or intended to be paid. The testator, after the death of his wife, allows his estate to be disposed of at public sale, and in a subsequent clause he directs, that if after his decease his executors should be of opinion it would be for the interest of his family to dispose of his real estate, and can satisfy the Orphans' Court of the county of Washington that it would be so, then, and in that case, he allows it to be sold. From these clauses it is evident that the testator intended that the sale, if made at all, should be a public sale, and that no other would be sanctioned by the court. But the executors, for a reason which is afterwards disclosed, passing by the plain directions of the will, procure the' act of the 26th July, 1842, by which she is authorized to sell and convey by deed to the purchaser all such parts of the real estate as may be found necessary to pay and discharge the debts, upon giving a bond in such sum as the Orphans’ Court of Washington county might direct for the faithful and proper application of the purchase-money. Did the legislature by this act intend to give her power to sell at private sale ? If they did, they should have said so in express terms. They give her power to sell and convey, without directing the manner of sale. This is left to be regulated by the general principle of law applicable to such sales, and to suppose otherwise would impute to the legislature, by implication, an intention to set aside all the guards which the law throws around the property of the deceased, and the will of the testator also. It would in effect make them participes criminis in the intended fraud. It is very probable that such was the design of the draftsman of the act. It is artfully drawn. But my respect for that branch of the government will ever prevent me from believing that it was their design to disregard the plain provisions of the will, or the sound and wholesome provisions, of the common law.

Judgment affirmed.


source: Caselaw Access Project

author: Rogers, J.

license: Public Domain

text:
    Linton v. Butz.
    A sale of personal property in the hands of a bailee is good against an execution creditor, though there be no actual delivery, if the vendor does not retake possession. And so if the vendee takes possession and leaves the property with the former bailee for a special purpose.
    In error from the Common Pleas of Washington.

      Oct. 25. Trespass for soiling a sausage-cutter belonging to plaintiff. The plaintiff proved that he purchased the cutter from Hill, in June or July, 1845, in payment of a debt, the article then being in the possession of Higgle. The plaintiff called at Biggie’s to get the property, and took it up to carry it off, when he was told if he would leave it, it would be put in good order.

      The defendant seized the cutter under an execution issued against Hill in August, 1845.
    Ewing, P. J., left to the jury the question of actual fraud in the sale, instructing them that the possession taken by Butz was sufficient in law.

      Watson, for plaintiff in error,
    cited Young v. McClure, 2 Watts & Serg. 147; McBride v. McClelland, 6 Watts & Serg. 94; Streeper v. Eckart, 2 Whart. 307.

      McKennan, contra.
    Carpenter v. Mayer, 5 Watts, 485; Story on Bailments, § 282; Butt v. Caldwell, 4 Bibb, 458.

      Nov. 6.
   Rogers, J.

The court instructed the jury that if they believed the sale was colorable merely, the contract was void. Under this instruction the jury found it was bond fide; so that the only question is, whether the court was in error in refusing to instruct them it was fraudulent in law. The plaintiff in error relies on Young v. McClure, 2 Watts & Serg. 150; and McBride v. McClelland, 6 Watts & Serg. 94. In these cases it is held that to constitute a valid assignment of personal property against an execution, there must be a delivery accompanied and followed by a continuing possession in the assignee. And where the possession does not follow as well as accompany a transfer, it is a fraudln law, without regard to the intent of the parties. It is not sufficient that the assignor gives to the assignee a delivery which may be symbolical or constructive, or a temporary delivery, and then take the articles back into his own possession, and keep and use them as before. The case in hand differs in two particulars from the epses cited. Here, at the sale, the article sold was not in the possession of the vendor, but in the hands of another, as bailee ; and the vendor did not take it again into his own possession. Hence the property being in the hands of the bailee, the only possession was given of which it was susceptible. This is all that is required. Thus nothing is more common than a transfer by a principal of goods in the hands of a factor, and no one doubts it is a valid transfer, subject only to any lien which the factor may possess. So a transfer of goods at sea, which are in the possession of the master of a ship, is deemed a valid transfer, and if he refuse to deliver them, upon due demand and refusal, the vendee may maintain suit against him for the recovery of them or their value. In a case of bailment the property passes when the sale is completed, and no formal delivery is necessary. That there was a sale here, is fully proved. That it was in the possession of another when sold, also appears. Nor is it pretended that the possession was ever resumed by the vendor. The sale was complete, nothing remaining to be done. In addition, it also appears that actual possession was taken by the vendee before the execution, and that the sausage-cutter was left in the hands of the bailee for a special purpose. It is only on the latter circumstance that an argument can be raised against the validity of the sale. But this has never been held to avoid, the sale when made by a purchaser of goods in the hands of a factor. For certainly when the sale is bona fide, the vendee may, if he chooses, constitute the factor his agent for the sale of the goods without incurring the risk of having the sale declared fraudulent in law. We cannot think that it comes within the principle of the cases cited, and are of opinion it would be dangerous to extend it further. If it were a moral fraud, it would be different, as the court properly instructed the jury; but as actual fraud has been rejected by the finding of the jury, we are of opinion the judgment should be affirmed.

Judgment affirmed.


author: Coulter, J.

text:
    Frye v. Shepler.
    To constitute a valid parol sale trader the statute of frauds, the possession must be exclusive of the donor, and the boundaries distinctly ascertained:
    Hence, where A. entered trader a parol agreement with B. to receive one hundred acres, including the mansion-house on one side of a larger tract, and A. lived with B., performed, the consideration, and farmed the land in the manner it had been previously farmed, or with his own and B.’s cattle, having also an agreement to farm the whole of the larger tract for one year, for payment of taxes and making fences, it was held not to constitute a case out of the statute of frauds.
    In error from the Common Pleas of Washington.

      Oet. 25. Ejectment for one hundred acres, part of three hundred devised by John Ringland to the plaintiffs. The defendant claimed under an agreement with John Ringland, about one year before his death. He proved,by numerous witnesses, that Ringland, who was a relation, sick with the palsy, had agreed if he would come and live with and take care of him, he would give him one hundred acres, including the mansion-house on the end of the farm next Greenfield, and that he had performed his part of the agreement. He further gave evidence of Ringland’s declarations, that a particular coal-bed was in the land he had thus given: that Ringland had given directions to a surveyor to run off the one hundred acres sufficiently explicit to have enabled him to do it; and this was done “ according to the plan proposed” by Ringland to the survey- or, but not until after his death. The line of this survey crossed three or four fields. Defendant, when he came on the land, brought his stock with him, and farmed the land with that stock and Ring-land’s, but he lived in the same house with him and his wife, as before. Part of the one hundred acres had been held by one Thomas, as a cropper, but when defendant came there, Ringland refused to continue that arrangement; but with defendant’s consent Thomas continued another year. It appeared from the evidence there was no marking of boundaries, nor any exclusive occupation; but that defendant farmed the whole tract under an arrangement with Ring-land, in consideration of the payment of the taxes and making the fences for one year, and that in other respects matters went on as before the agreement.
    Ewing, P. J., instructed the jury, that although it was part of the contract that defendant should live with Ringland, there was not such a delivery of possession as would take the case out of the statute. This was the only point assigned for error, and argued by

      McKennan, for plaintiff in error.

      Gow and Veech, contra.
    The cases settle this case not to be within the exceptions to the statute. The possession must be delivered in pursuance of the contract, and must be such as is not to be accounted for on any other supposition than the existence of the contract : Jones v. Peterman, 3 Serg. & Rawle, 546. But Haslet v. Haslet, 6 Watts, 464, lays down rules expressly excluding this case. If the boundary has not been fixed; if the possession has not been exclusive, but a mere occupation in common; if acts of ownership have been exercised over the whole; there cannot, say the court, bo a decree of performance. The necessity of exclusive possession is recognised in McKee v. Phillips, 9 Watts, 86; Sage v. McGuire, 4 Watts & Serg. 229; Robertson v. Robertson, 9 Watts, 42; Goucher v. Martin, Ibid. 106; and Allen’s Estate, 1 Watts & Serg. 383; and of marked boundaries by Grier, J., in Woods v. Farmare, 10 Watts, 204, affirmed by this court.
    This possession must also be notorious and unequivocal: Pugh v. Good, 3 Watts & Serg. 63; Parker v. Wells, 6 Whart. 162. The labour bestowed becomes immaterial if there was compensation by a receipt of the produce: Wack v. Sorber, 2 Whart. 387; Eckert v. Eckert, 3 Penna. Rep. 362; as in this case under the agreement for the occupation of the whole for a year.

      Nov. 1.
   Coulter, J.

The case of the plaintiff in error is touched with some strong traits of hardship. But the law cannot relieve from all the effects which flow from a party’s carelessness, negligence, or ignorance. The statute of frauds and perjuries established a wise and safe rule, in relation to the purchase and sale of real estate; and every departure from it, when contemplated through the medium of time, only impresses on the mind the excellence of the provisions of the statute. If judges, who allowed themselves originally to be seduced from it by the hardship of particular cases, had never swerved, the statute itself, and the necessity of adhering to its provisions, would have become so well known, that many of'those distressing cases, arising from parol contracts, never would have occurred; and at all times, as well now as soon after enacting the law, there would have been less hardship and injustice if its provisions had been strictly followed. We cannot extend or enlarge the exceptions to the statute, nor permit any feeling of tenderness or compassion to allow facts which have never heretofore been held sufficient to take a case out of its provisions, or, in other words, which have not been held sufficient to authorize a chancellor to decree specific performance to influence our judgment. The court below was right in telling the jury, that the facts proved in the cause were not sufficient to remove the bar of the statute.

There was no exclusive possession. Frye removed to the house and dwelling of Ringland, and lived with him; every thing went on as usual on the farm. Ringland’s property and stock was kept on the farm as usual, and ho continued to direct repairs, as he had done, and paid for them. Frye was a single man, and took some horses and farming utensils to Ringland’s ; the fields on the farm had been cropped out before he went there, and were so afterwards. There was therefore no exclusive possession to notify the neighbourhood that a change had taken place, nor any circumstances present sufficiently marked for that purpose. The case of Haslet v. Haslet, 6 Watts, 464, interdicts us, therefore, from recognising this possession as sufficient to take the case out of the statute. All the acts which are proven to have been done by Frye might readily have been done, in the estimation of those who witnessed them, with other views and purposes than as owner of the land, or in execution and performance of any contract for its purchase, and are therefore not sufficient to authorize a decree for specific performance by a chancellor: 1 Fonb. ch. 1, book 1, s. 8, note e; 1 Johns. Ch. 149; nor was there any ascertainment of the limits of the one hundred acres, so that they could have been set off by metes and bounds, according to any rule or data, fixing the boundary or limits of the alleged parol contract. No man can allege that John Frye ever took possession of the hundred acres, or of any hundred acres; he lived with the old man Ringland on the farm off which the hundred acres were to be struck. In all such cases, the boundaries ought to be so fixed and certain by the terms of the contract, that the land could be set off, as the parties intended it to be, by a surveyor, in the event of a decree for specific execution of the contract.

Judgment affirmed.


author: Per Curiam.

text:
    Berg v. Moore.
    An error of law committed by arbitrators, whose award was not appealed from, cannot be assigned for error.
    Nor js there error in the court below dismissing exceptions, founded on such error of the arbitrators, the remedy being by appeal, (the arbitrators being chosen under the compulsory arbitration law.)
    In error from the Common Pleas of Fayette.

      Oct. 25. Case for malicious prosecution. Under a rule by defendant, arbitrators were chosen. The plaintiff agreed to rest his cas.e on the proof of a warrant and arrest and discharge by the justice, without proof of malice, want of probable cause, or damage. On award filed, defendant excepted to the decision on the point of law; this was dismissed, and judgment entered on the award. The errors assigned were in the decision by the arbitrators of the point submitted, and the entry of judgment by the court.

      Deford, for plaintiff in error.
    The plaintiff virtually abandoned his cause by his admission, and the error is upon the face of the record: 1 Saund. 230; 2 Stark. Ev. 492; 1 Penna. Rep. 232; 4 Serg. & Rawle, 19; 10 Johns. 106.

      Patterson, contra,
    cited 2 Stark. Ev. 494, n. 1; 13 Serg. & Rawle, 233. This is not within the reasons for setting aside an award allowed by the act 1836, s. 26 ; and this must be made in the court below: 4 Watts, 12; 2 Rawle, 149. The remedy was by appeal: 5 Whart. 309; 3 Barr, 456.

      Nov. 1.
   Per Curiam.

It is settled by Knisley v. Shenberger, 7 Watts, 194, that a writ of error does not lie to the opinion of the Common Pleas on a question of error alleged to have been committed by arbitrators. The present is, in effect, a writ of error to the arbitrators; for the errors assigned are theirs, and not the errors of the court. But we can reverse only for error in the judgment — not in the award.

Judgment affirmed.


author: Bell, J.,

text:
    Hill v. Roderick.
    Testator devised “ that my son R. have all that part of the plantation whereon I now live, to contain one hundred and seventy acres, to live upon and use during his life”— remainder to his children. The residue he devised to J. In 1800, R. and J,, under the direction of the executor, established a consentable line — R.’s children being then minors. After they attained their -majority, they partitioned the tract allotted to R. and otherwise assented to the division. A. purchased J.’s interest at sheriff’s sale, and acquiesced in the division for seven years. Held, that the will required an immediate division of the land, and that, after such acquiescence of all parties, A', could not recover an excess of 14 acres, which were included in the allotment to R.
    In error from the Common Pleas of Fayette.

      Oct. 26. This was an ejectment for a strip of land between the lands of which the parties were in undisputed possession. •• The case was this: In 1785, two adjoining surveys were made for John Tate, the elder, for which a patent issued, calling for 320-|-acres; but, by a recent survey, it had been ascertained to contain 372J acres. In 1790 and 1799, John Tate devised: “I further will and devise that my son Robert Tate shall have that part of the plantation whereon-1 now live, to contain one hundred and seventy acres, to live upon and make use of during his life, and at his decease to be equally divided among his children; and further, I will that my son John Tate shall have and fully possess and enjoy the residue of the plantation I live upon, to be disposed of by him as he pleaseth,” and appointed his wife and one Jackson executors. In the year 1800, Jackson, the executor, sent for a surveyor to divide the land under the will; and Robert and John, the devisees, carried the chain when he marked a line dividing -their shares. No survey, however, was made to ascertain the contents of the purpart allotted to Robert Tate. This tract had been known as the Tateston- or Hacker tract. In 1809, John Tate the younger mortgaged a moiety of a tract called Tateston, which he held under his father’s will, describing it as one hundred and fifty acres and allowance; and one of the boundaries was “ thence by Robert Tate’s part of said tract.” In 1819, a judgment was ^recovered against John Tate, the younger, under which two hundred acres, adjoining Robert Tate and others, was sold in 1823 to the plaintiff. In 1827, judgment was recovered on a sei. fa. upon ■the mortgage of 1809 ; and, in 1829, sixty-one acres, being the residue of the mortgaged land, was sold to plaintiff. It was proved that the levy, under the judgment of 1819, covered the whole of the mortgaged property, except the sixty-one acres sold under that mortgage. Those sixty-one acres had been sold to Robert Tate, which was the reason they were not included in that levy. Unti^ within a few years, the disputed land had been uncleared, and was but partially so at present. In 1833, Robert Tate died, and his children, who were minors at the time of the parol partition, commenced proceedings in partition in 1839, and their land was awarded at a valuation to the assignee of some of them; and, upcler him, the present defendant held a conveyance for describing the land as about one hundred and eighty-four acres. It was. proved that the children of Robert Tate, after they came of age, made no complaint, or difficulty, about the division line; but it was talked about and agreed to by them. There was also the testimony of a witness that the present plaintiff had pointed out to the road-viewers the old line as the line between his land and that of Robert Tate.
    Ewing, P. J., instructed the jury that the children of R. Tate might confirm the parol partition made by their father; and, if they had done so, the acquiescence of the plaintiff for seven years without dispute as to the line, especially when, as late as 1838, he had pointed it out as the division line, would bind him. And that there was another ground for the decision. If the levy, under the judgment of 1819, only came up to the agreed line, and the mortgage of 1809 called for that line, the plaintiff had no right to the land in dispute which lay beyond. The authorities he cited, as to the confirmation by the infants, were Litt. s. 258; Co. Litt. 171 b; Hubbard v. Cummings, 1 Greenl. 11; Bac. Abr. T. Infancy and Age, I. 8; 2 Vern. 225; 10 Serg. & Rawle, 117; 2 Kent. Com. 234 et seq.

    The admission of evidence of the division line by agreement, and of what land was included in the survey, and the charge on the points stated, were the errors assigned immaterial in the case.

      Deford, for plaintiff in error.
    There is but one difficulty here, and that is, whether a tenant for life can establish a boundary binding on his children. That he cannot, appears from Hill v. Roderick, 4 Watts & Serg. 221; 4 Kent. Com. 106; Bac. Abr. tit. Leases, B., I. 2; Com. Dig., Estate by Grant, E. 2, note r; Doug. 50; Jenkins v. Church, Cowp. 482; Bull. N. P. 96 b; Graham v. Londonderry, 3 Atk. 393. The person only of the minor is under the control of its parent, as guardian by nature : 2 Kent’s Com. 219; Jackson v. Combs, 7 Cow. 36; Allison v. Wilkin, 1 Wend. 153; and he can do no act binding his estate : Hemmich v. High, 2 Watts, 159.
    The sheriff’s return is the proper evidence of what is included in the levy : Beeson v. Hutchison, 4 Watts, 443; unless it is not clear enough to identify the property: Scott v. Sheakly, 3 Watts, 52. Here the whole right and title was levied on, and the boundaries became immaterial, for all the right in the tract passed: McCormick v. Harvey, 9 Watts, 484; Inman v. Kutz, 10 Watts, 100; Zeigler v. Houtz, 1 Watts & Serg. 540; Swartz v. Moore, 5 Serg. & Rawle, 257.

      Dawson and Howell, contrá.
    The plaintiff could have no more extensive claim than was covered by his levy, and that may always bo shown by parol: Buchanan v. Moore, 10 Serg. & Rawle, 279; Schall v. Miller, 3 Whart. 250; for the sheriff cannot sell more than that: Rodgers v. Gibson, 4 Yeates, 114; Grubb v. Guilford, 4 Watts, 223, 244. But it was shown beyond a doubt that the infant devisees had ratified the partition by the tenant for life, and, by their ratification, the proceeding became binding on both parties: Jackson v. Van Corlaer, 11 Johns. 127; Hubbard v. Cummings, 1 Greenl. 11, 1 New Hamp. 73; Brown v. Caldwell, 10 Serg. & Rawle, 114; McGinn v. Shaeffer, 7 Watts, 413. Besides, is it not plain a division was contemplated by the will ? The devise is of a specific portion for life, which could not be enjoyed until severed. What he held for life his children were to thke as remainder-men. .

      Nov. 13.
   Bell, J.,

(after stating the devise,- and the running of the division line in 1800.) — At the time this line was established, Robert’s children were infants j'but after his death, and subsequent to their attaining full age, they recognised it as- being the division line ascertaining the land devised to them in remainder. They have never, in any way, called it into question, for the present litigation, which seeks to abrogate it, was originated by one claiming title under John Tate to the purpart assigned to him. The point presented for determination is, whether Robert’s children were bound by this division lino, ascertained and acknowledged by their father and uncle, and remaining unimpeaclied for forty years ? If so, it is conceded to bo obligatory on John Tate and all claiming under him.

"When this case was here before, (4 Watts & Serg. 221,) it was decided simply, on the ground that the act of the tenant for life could not bind those in remainder, without their assent, which could not be given by Robert’s children, who were minors, and consequently, there being no mutuality of obligation, the agreement establishing the division line ceased to have any binding effect upon John, or those deriving title from him, after the death of Robert. This conclusion was arrived at without adverting to the terms of the devise, to which the attention of the court was not called by the counsel on either side. The question has upon this occasion been presented in a new aspect, so far as the principle upon which it is to be decided is involved; and this relieves us from the necessity of inquiring into the errors assigned in the charge of the court below'.

The will of the testator furnishes incontestable evidence that, when penning the devise under consideration, he had in contemplation an immediate partition of the land. It is perfectly’manifest, from the terms used and the directions given, he did not intend that his sons John and Robert should continue to occupy the estate as tenants in common, during the life of Robert. The language of the devise conclusively repels such an idea. The son Robert was to have that part of the plantation whereon the testator lived, to contain one hundred and seventy acres; and John was to possess and enjoy the residue. Each of the devisees was to occupy in severalty, and that portion of the land to bo enjoyed by Robert was specifically pointed out. Not only was the number of acres named, but the sije of the plantation on which they lie. It is true, the will contains no express direction that a line of division shall be ascertained and established, but as this was essentially necessary to carry out the obvious intention of the testator, looking to a severalty of possession and enjoyment, it is not to be doubted he regarded the making of such demarcation as the inevitable consequence of the directions he gave. Nor can it bo supposed, from the very nature of the subject, that the line to be marked' between the first takers was intended as temporary or ambulatory. As already remarked, the land, at the date of the devise, was to a great extent unimproved. Both the sons of the testator were, at the time of his death, young men, and,"in the ordinary course of nature, might be expected to live for many years. To give value to the respective portions of the plantation divided between the devisees, it was necessary 'the ground should be cleared and improved by an application of their money and labour. But were they to do this in utter uncertainty of the boundary of their respective possessions, or was that boundary liable to be shifted, after the lapse of years, and thus the toil and expenditure of one of the devisees made to enure to the benefit of the other? That the testator so intended, cannot, I think, be for a moment pretended. That he did entertain an intent as to an actual division of the land between his sons, is perceived upon the simple suggestion of it; that he contemplated such a division between them, subject to be set aside upon the accession of the remainder-man, involves consequences productive of such possible injustice, that it is not to be attributed.to a father providing for the future welfare of his children. . We are, therefore, of opinion the consentable line run by Robert and John, ascertaining a division of the land, in pursuance of the terms of the devise, was run and established with tho sanction and under tho authority of the will, and is, therefore, binding upon all parties claiming under it — more especially after the lapse of time which has had place here, during which all the persons in interest acquiesced. Had tho testator expressly directed a dividing line to be marked after his death, no controversy could have arisen; but the implication that he so intended is so clear, as, in my judgment, to admit of no hesitancy. Nor does the case fall within the operation of the rule, volwit sed non dixit, for a necessary implication is to be accepted for as strong an indication of a testator’s will as an express direction.

This view covers the whole case, and decides it in favour of the defendants in error. It renders it unnecessary to notice the several bills of exception taken to the ruling of the court below on questions of evidence, with the exception of the first bill, further than to remark that if they were oven erroneous, it would furnish no ground for a reversal of this judgment, as the error inflicted no injury on the plaintiff. The evidence mentioned in the first bill of exceptions was rightly received.

Judgment affirmed.


author: Gibson, C. J.

text:
    In re Campbell’s Estate.
    To discharge a debt due on promissory notes by way of gift to the debtor, a release, under seal, or for a consideration, or air actual delivery, or cancellation of the notes, is essential. An intent so to do, or instructions given for the delivery up or destruction of the notes, will not suffice, though shown to have existed when the creditor was making distribution of hiS estate, and the debtor was a favourite nephew.
    Appeal from the Orphans’ Court of Washington.

      Oct. 28. D. Campbell, jun., administrator of Campbell, filed an account, -which was referred to auditors. From their report it appeared, that accountant was a favourite nephew of the intestate, and had purchased some land from him. Some time afterwards, the intestate had taken two notes from accountant, and the question was, whether he was chargeable with them. It was proved, that in the accountant’s absence, the intestate had sent for one Freeman, to prepare assignments of certain notes, &c., held by him. This was done, and the property assigned among his relatives. Freeman testified, when this was taking place, the wife of the intestate asked him what ho would do with D. Campbell’s [[the accountant] notes, and he directed her either to burn them or give them to him. They were not then produced or specified. The widow of the intestate stated she had been directed by her husband to destroy the notes, and she had delivered them to accountant after intestate’s death. Ewart, who witnessed the assignments, stated, that after they had got through, Mr. Campbell asked his wife if these were all the notes; she said they were, excepting D. Campbell's notes; Mr. Campbell said, “if he was likely to drop off, or any thing should happen to him before he would get to see D. Campbell, do you take them notes and burn them;” this direction-he repeated.
    The accountant offered himself for examination, but it was declined ; and the auditors being of opinion the transaction amounted to an equitable extinguishment of the debt, refused to charge accountant with the amount of his notes. The report havirg been confirmed, this was the question argued here.

      Mahon, for appellant.
    The fact that the intestate survived this alleged gift, and that the notes were not cancelled, is conclusive against the supposed satisfaction of the debt by gift: 2 Story’s Eq. ss. 705-6; Flower v. Marten, 2 My. & Cr. 459; Weckett v.
      Raby, 3 Bro. P. C. 16; Edwards v. Jones, 1 My. & Cr. 226; Duffield v. Elwes, 1 Blig. N. S. 497.

      McGandless and McKennan, contra.
    There were good reasons for this conduct, and they could have been explained by the accountant. But as the report shows there was an equitable discharge, accident only preventing a delivery of the instruments, or the destruction of them according to the owner’s directions: Weckett v. Raby, 2 Bro. P. C., Toml. ed. 386; Sibthorp v. Moxom, 3 Atk. 579; Eaton v. Smith, 5 Ves. 350; Gardner v. Gardner, 22 Wend. 535; 2 Story’s Eq. ss. 705, 706.

      Nov. 4.
   Gibson, C. J.

The notes in question could have been discharged only by a sealed release, or a parol gift of them; the disposition of them insisted on by the accountant was neither. A gift is a contract executed; and, as the act of execution is delivery of possession, it is of the essence of the title. It is the consummation of the contract which, without it, would be no more than a contract to give, and without efficacy for the want of a consideration. If made on sufficient consideration, it would be a binding agreement; but then the nature of the contract would be changed, and there would still be no gift. The gift of a bond, note, or any other chattel, therefore, cannot be made by words in futuro, or by words in prcesenti, unaccompanied by such delivery of the possession as makes the disposal of the thing irrevocable. Even the revocation of a will before the statute of frauds, could not be effected by words in futuro; as was held in Benton v. Gowell, Cro. Eliz. 306. Possibly the destruction of a security might be equivalent to a delivery of it; but no mere intent to destroy it' would be so. Nothing discharges it while it remains in the creditor’s possession and power. The cases all agree, not excepting even Wentz v. Dehaven, 1 Serg. & Rawle, 317, that the parol discharge of a debt without consideration, or delivery up of the security, is inoperative. The gift in the latter was sustained on the baseless argument that the discharge, though unsealed, was in writing; the futility of which was shown in Whitehill v. Wilson, 3 Penna. Rep. 412, on the authority of the great case of Rann v. Hughes, 7 Term Rep. 346, in note; in which it was decided by all the judges in the House of Lords, that all contracts which are not by specialty, are alike by parol; and that unsealed contracts by writing do not form an intermediate class. Nor is the consideration of blood, or natural affection, sufficient to support a promise to give; as was shown in Kennedy’s Executors v. Ware, 1 Barr, 450, sustained by Lyon v. Marclay, 1 Watts, 271, and Fink v. Cox, 18 Johns. 145, and many other cases. What, then, is the transaction before us ? Duncan Campbell, a married, but childless old man, intending to die intestate, is disposing of parts of his property, in contemplation of death. He calls for his notes and bonds, in order to distribute them among particular objects of his bounty ; and when they are transferred, he asks his wife whether they are all he has, and is told that they are all,* except the notes of Duncan Campbell, his nephew. She inquires what is to be done with them; and swears that he told her to destroy them. Freeman, who wrote the assignments of the other notes, testifies that he told her to burn them, or give them to Duncan Campbell, the nephew; and Ewart, who was there to witness the assignments, says he told her, that if he were likely to drop off, or any thing should happen to him before he should see the nephew, she .should then burn them. If the case stood upon the testimony of this last witness, it would clearly be that of an intent to give in futuro, reserving the control over the ownership in the mean time. But all agree that the possession was not parted with; and it cannot be disputed that his intention to have them destroyed or delivered up might have been abandoned, and his directions countermanded. They were his property while he lived; and as the direction was not a testamentary one, it became inoperative at his death. It was a mere authority, which expired with him. To say the least, the case is not stronger than Plum-stead’s Appeal, 4 Serg. & Rawle, 545, in ayMcIi the words, “for the heirs of Gr. P.,” endorsed on an envelope containing securities, was held not to be a testamentary gift; and had it been thought to be a gift inter vivos, there would not have been an attempt to have the papers admitted to probate. The accountant, therefore, ought to have been charged with the notes in question.

Decree reversed in part, with direction to charge the accountant with his own notes; and affirmed for the residue.


author: Bell, J.

text:
    Burns v. Sutherland.
    In a question of tlie validity of a parol gift, accompanied by possession and improvements, if there be any evidence of the contract, tlie location and quantity of the land, possession taken pursuant to the contract, and improvements made, the jury are to determine whether these facts are sufficiently established; and though proved by evidence of admissions, tlie judge can do no more than caution the jury of the danger of relying on such proof. b '
    If the evidence prove the location and quantity of the land with sufficient precision to enable the jury to determine them, so as to direct how a surveyor may run it off from the residue of the tract, the boundaries are sufficiently certain in the case of a parol sale, or gift.
    It is not error to omit an explanation of the law bearing on tlie case, unless instructions are prayed.
    In error from the Common Pleas of Washington.

      Oct. 29. Trespass. The plaintiffs were executors of G-eorge Sutherland, having an estate under his will. The defendants were heirs of Alexander Sutherland, a son of G-eorge, who it was alleged had received the land under a parol gift, and made improvements. By his will, testator, after making provision for some of the children of his son Alexander, declared that if the heirs of Alexander should bring ejectment or otherwise recover fifty acres of land their father had settled on in his lifetime, and should actually gain that by law of his real estate, then the heirs of Alexander should be cut off with one dollar. The defendants, who, since the death of testator, had entered on the land, called many witnesses to prove the gift. E. L. had heard testator, a few days after he raised his log-house, say: that if Alexander would go on and finish off this house, as he had agreed, he would give him fifty acres of land; and after testator had got into his house, he said: Alexander had finished off the house in good style, and he had given him fifty acres of land, and that Alexander had built himself a house and shop upon it. There was no designation of boundaries then mentioned, further than that the land was on the ridge next the blockhouse, and lay on the road between witness’s father’s factories and Potter’s mill. The time of these conversations did not appear from the paper book. The witness further stated that Alexander had been living on these fifty acres four or five years prior to 1823, when witness left the country. J. E. stated there was a strip of woods between the land Alexander lived on, and the land of testator; and she proved testator’s declaration that the mother of one of defendants might move a house on the land to a particular spot, for that was defendant’s land, and he would help her to move it. S. 0. proved that prior to 1814, testator told his son Alexander to direct witness where to cut wood on the disputed tract, as he was going to give him the Ignd. Between 1814 and 1818, testator informed witness he had given Alexander fifty acres there next the blockhouse, in that corner.
    John Daley testified that about 1821-2, Alexander applied to him to help raise a shop ; part of the foundation was laid. Testator came there, and told Alexander he would put the shop on tho other side of the road; they disputed, and testator said : you may put it where you jdease — the land is your own. Seven or eight years afterwards, testator, pointing to the land where Alexander lived, told witness he had given him fifty acres. Two years afterwards, he again told him he had given Alexander fifty acres of his land in 4 the north-west corner of his farm, adjoining lands of McCoy and the blockhouse tract; that he did not think it prudent to give him a deed, as he had spent his wife’s land; but he would leave it so that when he was called off, the heirs would get the land. It was also in evidence that Alexander had built a house, barn, and shop — such as were usual in that part of the country — and cleared part of the land, where he resided until his death, in 1886. His family moved off a few weeks afterwards. A surveyor who had laid off the land containing forty-nine acres, one hundred and thirty-eight perches, since testator’s death, stated: It could not be taken off in any other way so as to include the buildings. The plaintiffs proved a lease between testator and defendants, after the death of Alexander, for tho whole tract, and that from 1815 to 1836, the whole tract was assessed to testator. That in 1820 Alexander applied for the benefit of tho insolvent laws, and made affidavit he had no property. The defendants showed that from 1810 to 1815, fifty acres were assessed to Alexander.
    The two points submitted, which were assigned for error, were,
    3. That defendants must show mot only the gift, the possession taken in pursuance thereof, and valuable improvements, but the precise locality of the land claimed, and the particular boundaries thereof, so that the jury could direct, from the testimony before them, where the lines should run, and how the deed should be drawn. To this the court answered: This is true, but it does not mean that the jury must be able to fix the exact courses and distances of the lines, but must be able to fix the locality and boundaries so as to direct how a surveyor may run it off from the rest of the father’s land.
    6. That the defendants have failed, in law, in making out a valid parol title to the land in dispute.
    Answer. We cannot say this — it depends upon facts of which the jury must judge. But to enable the jury to find for the defendants, they must be satisfied that the defendants have made out clearly the facts necessary to bring their case within the principles of law applicable to parol sales or gifts.
    These two points, and the want of an explanation of the law in relation to parol sales or gifts of land, were the errors assigned.

      Acheson, for plaintiff in error.
    The court should have explained the law to the jury relative to this point. [Per Quriam. — You did not ask instructions.] They were necessary, in reply to the 6th point: Wood v. Farmare, 10 Watts, 204; Robertson v. Robertson, 9 Watts, 42; Haslet v. Haslet, 6 Watts, 467; Wack v. Sorber, 2 Whart. 387. Indeed, the defendants were uncertain whether to claim by gift or sale. In cases of this nature, the court are more especially judges of the sufficiency of the evidence in point of law; it is in the nature of a proceeding in equity, and they must decide whether a case has been made out, if the jury believe the testimony. The testimony here neither established a gift nor a sale: Eckert v. Mace, 3 Penna. Rep. 364; Eckert v. Eckert, Ib. 360.

      McKennan, contra.
    There was no dispute below as to the law that was read from the authorities, and the judge was not bound to argue the case or repeat the substance of the authorities cited, unless requested. The course taken by Grier, J., though sanctioned by this court, is not obligatory. His rule, which is the most stringent, requires but reasonable certainty as to boundaries; and was not that the case here ? The quantity, the part of the tract, and some of the very lines, were designated; surely no more could be asked, unless a survey is. always necessary. We insist the evidence showed a gift, coupled with possession and improvements.
    Watson, in reply.
    Eckert v. Eckert shows that improvements are not sufficient to give title if they were compensated. What were they ? A log house and shop, built from timber growing on the land; their want of value was shown from the fact that no evidence was attempted to be given on that subject.

      Dec. 6.
   Bell, J.

The plaintiffs in error, by their sixth point, asked the court below to instruct the jury, “that the defendants had failed, in law, in making out a valid parol title to the land in dispute.” This the court declined to do; but added, “to enable the jury to find for the defendants, they must be satisfied that the defendants have made out, clearly, the facts necessary to bring the case within the principles of law applicable to parol sales or gifts.” It is, certainly, the duty of the party who invokes the aid of the peculiar equity, administered in cases like the present, to establish, by clear, precise, and satisfactory proof, every requisite to take the particular transaction from without the operation of the statute of frauds; and a failure to do so, in any essential point, will defeat the alleged contract as a means of conveying lands. When such a failure occurs, it is the duty of the judge presiding at the trial of the cause to instruct the jury, .the party averring the oral sale had not made out a case in which a chancellor would decree a specific performance; Haslet v. Haslet, 6 Watts, 464; Robertson v. Robertson, 9 Watts, 42; Woods v. Farmare, 10 Watts, 203; but though he ought to examine the case, so as to assist the jury in estimating the nature, weight, and relevancy of the testimony, it is not his province to decide questions of disputed facts, where any evidence has been given proper for the consideration of that member of the tribunal to which, in a common law court, are properly referred litigated facts. Admitting every thing to be true which the proof tends to establish, it is for the court to say whether such a case as would induce a chancellor to rescue it from the blighting influence of the statute has been presented; but where any proof of circumstances, proper' and necessary for this purpose, has been given, the value of it is to be determined by the jury, under the admonition of the court, in regard to the equitable rules which have been established to direct and govern the determination. In this, as in all similar cases, it was incumbent on the defendants to show the alleged contract, and, clearly, what ivas the subject of it; what was the consideration upon which it proceeded, and that possession of the land in dispute had been delivered to and taken by their ancestor, subsequent to and in pursuance of the contract. But they were at liberty to make out these requisites by any mode of legal proof, sufficient to produce a clear conviction of their existence in the mind of the inquirer. Looking to the evidence introduced by them on the trial of the cause, for this purpose, we think the court below Avould have stepped over the line dividing its province from that of the jury, had it adopted the suggestion tendered by the plaintiffs’ sixth point; for there was, certainly, proof, if believed, of all the requisites I have adverted to as necessary to establish a parol sale of lands. Without attempting to recapitulate it minutely, it will be sufficient to say that Elizabeth Lauglilin testified to a conversation Avhich occurred at her father’s house, in the year 1815, in which old George Sutherland stated, that if his son Alexander would go on and finish the new-hewed log house, then in process of erection for the father, as the son had agreed to do, he, the father, would give Alexander fifty acres of land adjoining the blockhouse tract, on the road between the witness’s father’s house and Potter’s mill. She, afterwards, heard George say he had got into his new house, which Alexander had finished off in first-rate style; that he had given Alexander fifty acres of land, and that Alexander had built himself a house and shop on it, and he hoped he would do well. This testimony, if true, establishes an agreement, founded upon a sufficient consideration, subsequently executed by performance of the consideration, by the son, and by a delivery of possession of the land by the father, in pursuance of the contract, followed by valuable improvements made thereon by the son. It is true this evidence is open to the remark repeated in Robertson v. Robertson, that the declarations of parties are the most unsatisfactory species of evidence, on account of the facility with which they may be fabricated, and the impossibility of contradicting them,, to say nothing of mistakes or failure of-recollection, which may totally alter the effect of the declarations. Still they are legal evidence for the consideration of a jury, to whom may be, properly, addressed the animadversions to which this kind of proof is obnoxious. But the testimony of Elizabeth Laughlin is strongly corroborated by other witnesses, and particularly by John Daley, who was called on to assist Alexander in raising a shop on the fifty acres. He says a dispute took place between the father and son, as to which side of the road the shop should be built on. It was terminated by the petulant exclamation of the father, that the son might place the shop where he pleased, as the land was his own. This was twenty-four or twenty-five years before the trial, and at that time the son had built himself a house upon the disputed tract. Seven or eight years after this, the father told the witness he had given Alexander fifty acres of land, pointing to where the son then lived. All the witnesses agree that the son took possession of this land, about the year 1815; that he cleared fifteen or twenty acres of it, built upon it a house, stable, and shop, such as were common in the neighbourhood ; and that he continued to reside there until his death, in the year 1886, after which his widow and family lived upon it for some time. Now, though there is testimony in the cause tending to disprove the alleged agreement between the father and son, and its results, surely the learned president of the Common Pleas would not have been justified in taking the whole case from the jury, on the ground of failure of proof, as he was requested to do by the plaintiffs. But they further object, that the evidence does not ascertain, with sufficient precision, the locality of the tract claimed by the defendants; and the answer of the court to the third point submitted by the plaintiffs, on this subject, is assigned for error. The rule, that you must show what was the subject of the contract, is unquestionable. But to show this Ayith reasonable certainty is sufficient. It is not necessary that lines of separation should be actually run upon the ground, if from the agreement of the parties, and the distinct subsequent possession of the vendee, it is possible to ascertain the boundaries and quantity of the land sold; or, as was ansAvered by the court in this instance, the proof must be such as to enable the jury to fix the locality and boundaries, so as to direct how a surveyor may run it off from the rest of the vendor’s land. The proof here seems to me to be ample for this purpose. In addition to Avhat was stated by Mrs. Laughlin on this point, John Daley testified, George Sutherland told him he had given his son fifty acres lying on the north-Avest corner of his farm, adjoining lands of John McCoy, and the blockhouse tract. Barnabas Chase and William Sprouls assign to the disputed tract the same locality; and Thomas Frazier, a surveyor, pursuing this description, found no difficulty in running division lines, separating the fifty acres from the rest of the farm. He says it could not be .taken off in any other way so as to include the buildings. Indeed, none of the witnesses examined on either side seem to have had any hesitancy in pointing to the particular position of the fifty acres, which, according to Jane Frazier, was separated from the possession of George, the father, by a strip of woods; and the father’s last will speaks of them as fifty acres which Alexander had settled on in his lifetime. There is, therefore, no error in the answer complained of.

The third error assigned avers the court failed to explain "tb the jury the law relating to parol sales and gifts of land. But we see no sufficient grounds for this complaint. Full answers were given to all the points submitted by plaintiffs, which embraced the principles they thought applicable to their case, and necessary to be brought to view in proceeding to its correct decision. If the counsel conceived any further instruction was proper to enlighten the jury, they should have called the attention of the court to it, and specifically prayed the instruction desired, for it has been more than once ruled that want of direction not asked for will not be deemed error: McClure v. McClure, 1 Barr, 374; Churchman v. Smith, 6 Whart. 146. In all cases much is left to the discretion of the judge trying the cause, as to the extent of instruction required by the exigencies of the particular cause, where no particular direction is prayed for. It is impossible a court of error should know how the trial was conducted, or how much information was imparted to the jury, as to the principles which ought to govern it during its progress; and it may depend very much upon this how far the judge ought to elaborate his charge. In this very case, as we are informed, most of the decided cases having relation to the litigated subject were read to the jury, and fully commented on by the counsel, at the trial; and the court may, therefore, have correctly thought nothing further was required than answers to the points submitted. It is impossible for us to say in this there was error.

Judgment affirmed.


text:
    Donley v. Brownlee.
    A recognisance, entered into since the act of 1842, conditioned that defendant, appealing from á judgment of a justice, shall prosecute his appeal with effect, is void ; for the condition refers to the provisions of the act of 1810, and those are supplied by the act of 1842.
    In error from the Common Pleas of Washington.

      Oct. 29. A judgment having been recovered against Robinson in 1844, before a justice of the peace, he appealed. The transcript showed “ defendant and Wm. Brownlee, each, tent in $200, conditioned that defendant shall prosecute his appeal with effect, &c.” Judgment having been entered for plaintiff on the appeal, a sci fa. issued, reciting the proceedings and a recognisance by Brownlee, “ conditioned’ that no part of the property of appellant, which was liable to be taken in execution, should be removed, secreted, or assigned, or in any way disposed of, except for the support of himself and family, &c., “ following the words of the act of 1842, abolishing imprisonment for debt. Plea, nul tiel record. On inspection, the court gave judgment for defendant.

      Gow, for plaintiff in error.
    The recognisance is under the act of 1842 — that being the law in force when it was entered into. The short form is sufficient, since it explains all the material parts of the agreement: 4 Burn’s Justice, 60, tit. Recog. It is recognised in Commonwealth v. Emery, 2 Binn. 432, as a memorandum of the agreement of the recognisor, as stated to him by the magistrate. It afterwards may be drawn np at length; but the practice is to certify the short form. There can be no doubt, then, of its sufficiency under the act of 1810, 2 Penna. Rep. 431; 1 Penna. Rep. 149; and the et cetera, including all things that are material and proper to the completeness of the transaction, implied the condition then prescribed by law. This effect of the §c. appears from Wilson v. The Commonwealth, 10 Serg. & Rawle, 375; Sayer v. Pocock, Cowp. 407; Co. Litt. 17 b. There was, therefore, sufficient to enable the prothonotary to make out a writ, since, as was said in a similar case, Moore v. McBride, 1 Penna. Rep. 149, but one species of bail is known in this stage of the cause. Adams v. Mill was in the old form, and therefore bad; but it was at length, and not in short.

      Watson, contra.
    The form of the recognisance applies to the act of 1810, and was in use then, and, unless that and the act of 1842 prescribe the same condition, it cannot cover both : Adams v. Null, 5 Watts & Serg. 363, in effect decides the point.

      Nov. 4.
   Per Curiam.

The condition of this recognisance “ to prosecute this appeal with effect,” is in substance the condition prescribed by the act of 1810, which allowed the bail to discharge himself by surrendering his principal. When the act of 1842 abolished imprisonment for debt, and made it impracticable to surrender the body, it became necessary to alter the form of the recognisance, in cases of appeal, to suit the altered state of the law; and this was done by prescribing a recognisance with condition that no part of the defendant’s property should be removed, secreted, assigned, or disposed of, so as to baffle an execution in case the plaintiff should recover. But, as the defendant could not have been surrendered in discharge of his bail in the case before us, the recognisance, if valid for any purpose, would be a contingent engagement merely to pay the money, and, consequently, more burdensome to the appellant than that which is presented by the statute now in force. But that such a recognisance is void, was held in Thomas v. Stewart, 2 Penna. Rep. 475, in the case of a similar recognisance on the act of 1819, which exempted women from imprisonment for debt; and it is applicable in every respect to the case before us. As a void record is no record, the plea of nul tiel record, therefore, was properly sustained.

Judgment affirmed.


text:
    Shaw v. Galbraith.
    An executed conveyance without words of inheritance in the granting clause of the deed} is not enlarged by a covenant of warranty in fee-simple.
    But such a covenant operates by way of estoppel to prevent circuity of action, and bars a subsequent lessee of the grantor with notice of the deed.
    A widow of the grantee may defend her possession under such estoppel, her right under the act of Assembly giving her this incident to tenancy in dower.
    An agreement by the grantor to convey in fee to the lessee, at the death of the grantor, who is yet living, is irrelevant evidence.
    In error from the Common Pleas of Washington.

      Oct. 29. Ejectment. Shaw, the plaintiff, showed a lease for life to himself from Galbraith, the elder, dated Aug. 12,1846, which it was provided should have no effect upon a conveyance to Shaw in 1837.
    The defendants showed a deed by Galbraith, the elder, dated July 2, 1838, conveying to Galbraith, the younger, (the words “his heirs and assigns” not being in the granting clause of the deed, or in the habendum,) the property in dispute in consideration of one dollar, and the payment of $30 per annum to the grantor and his wife during their lives. In the clause of warranty the deed ran thus : “ And the said R. G., sen., and E., his wife, for themselves and their heirs, unto the said R. G., jun., and his heirs and assigns, and against all and every person lawfully claiming, or to claim the same, or any part thereof, will warrant and for ever defend.” This deed, though styled an indenture, was sealed only by the grantor and his wife, and was in the ordinary form of a conveyance in use in this state, and was recorded in 1838. Galbraith, the younger, died before this action was commenced, one of the defendants being his widow — the title of the other defendant did not appear.
    The plaintiff then offered in evidence sealed articles of agreement between Galbraith, the elder, and himself, dated in 1837,• wherein Galbraith, the elder, in consideration of $300 agreed to be paid by Shaw, and of the natural love and affection he bore to his daughter, the wife of Shaw, did covenant and agree for himself, his heirs, executors, &c., that he, his executors, &c., would, at the death of said Galbraith, convey to said Shaw, his heirs, &c., by such deed as counsel should advise, the undivided half of a tract of 200 acres, whereon said Galbraith then resided. On this was endorsed a receipt for $15. Galbraith the elder was yet living. These articles were rejected by the court, who (Ewing, P. J.) instructed the jury that the deed of July conveyed a fee-simple by estoppel to the grantee, and plaintiff was not entitled to recover.
    This ruling, and the rejection of the articles of 1837, were the errors assigned.
    (Note. — It was not submitted that a recovery could be had for part of the land, nor could it be collected from the record what was the title of defendants, excepting that of the widow of Galbraith, the younger.)

      Acheson and Watson, for plaintiff in error.

      McKennan, contrá,
    argued that the warranty operated in the' same manner it would have done had there been no title in the grantor at the time of the conveyance; but he had subsequently acquired one, viz. as an estoppel to prevent circuity of action; for this he cited McCracken v. Wright, 14 Johns. 194; Pelletreau v. Jackson, 11 Wend. 110; Jackson v. Hubbell, 1 Cow. 616; Jackson v. Bradford, 4 Wend. 622; Baxter v. Bradbury, 20 Maine, 263; Christmas v. Oliver, 10 B. & Cres. 181; Somes v. Skinner, 3 Pick. 58; and that this doctrine was a fortiori applicable to a grantor having title.

      Nov. 4.
   Rogers, J.

In the text-books of the law, Co. Litt. 385 b; 1 Shep. T., Prest, ed. 182, it is thus laid down: “Neither lineal nor collateral warranty can enlarge an estate; and, therefore, if a lessor by deed release to his lessee for life, and warrant the land to him and his heirs, this doth not make his estate greater, neither will it bar titles of entry or actions in cases of mortmain, consent to a ravisher, (condition on a) mortgage, or dower.” Now, granting on this authority, that, in this deed, a life-estate only is granted, and that the subsequent warranty, or covenant, does not enlarge the estate, yet the question remains whether this covenant may not operate as an equitable rebutter; or, in other words, is Galbraith, and Shaw who claims under him, estopped from asserting a title to the land ? In this case, it matters but little whether the estoppel operates by the ordinary effect, whereby the parties are debarred from denying the passage of the estate, or as a transfer of the estate. On this point there is much learning in the books somewhat difficult to understand, but which we are relieved from examining, as, take it as you may, if an estoppel, it is an answer to the action of the grantor, or those claiming under him, even although the fee may not have been transferred so as to enable tbe grantor to support an action against a stranger. On tbe authority above stated we will take it, and perhaps that is the better opinion, that the estate is not enlarged. Are, then, the parties debarred from denying that the estate passes ? By the habendum, in consequence of the omission of the word “heirs,” a life-estate only is conveyed to the grantee; but the deed contains a special warranty, whereby the estate is warranted to the grantee, his heirs and assigns, against the claim of the grantor and his heirs, and every person claiming lawfully the same. Now, although a warranty, in favour of the heirs, may not enlarge the estate, yet it would be against every principle of construction to reject it as surplusage. In the construction of a deed, or will, every word must have its own weight, and certainly a distinct covenant, as here, cannot be utterly disregarded. The deed contains a covenant that the grantor will not molest or disturb (that is its effect) either the grantee or his heirs, and if, contrary to his covenant, he recovers the land and dispossesses the grantee or his heirs, action accrues to recover its value from the grantor. The question then is, whether, to prevent circuity of' action, the defendants may not plead an equitable rebuttal, or estoppel, as against the grantor and those claiming under him. Circuity of action, as my Lord Coke says, Co. Litt. 265 a, is not favoured in law. The principle is founded on this consideration, that it would be against equity to allow the grantor to recover the land, thereby breaking his covenant and exposing himself to an action to recover its value. The principle is recognised in several analogous cases. Thus, in McCracken v. Wright, 14 Johns. 194, and in Jackson v. Bradford, 4 Wend. 622, it is ruled: That, in a deed of bargain and sale, no estate passes, except what is in esse at the time of the grant; but where title is afterwards acquired and there is a warranty in the deed, to avoid circuity of action it operates as an estoppel. Where there is a warranty in the deed, the warranty will rebut and bar the grantor and his heirs of a future right. This is not, as is there said, because the title ever passes by such grant; but the principle of avoiding circuity of action interposes and stops the grantor from impeaching a title, to the soundness of which he must answer’ on his warranty. The same principle is also recognised in Somes v. Skinner, 3 Pick. 61; and in McWilliams v. Nisly, 2 Serg. & Rawle, 516. Without then undertaking to determine’ whether the fee-simple is transferred, we are of opinion that the grantor and Shaw, the plaintiff, who claims under him, are estopped from denying the title. But the’ plaintiff contends that none but parties and privies can take advantage of an estoppel, and this, in general, is true ; but it is extended yet further. For the lord by escheat, as is said, Co. Litt. 852 a, the tenant by the curtesy, the tenant in dower and the incumbent of a beneficiary, shall be barred by and shall take advantage of an estoppel. In this it appears that a tenant in dower may take advantage of an estoppel, and although dower here has not been assigned to the widow, yet, by our several intestate acts, she has such an interest in the land as entitles her to defend her possession by way of equitable rebutter.

The only question which remains is, was the court right in excluding the deed of Galbraith to Shaw? We think they were. We cannot perceive in what way it bears on the construction of this deed, and, besides, it conveys nothing" to Shaw until after the death of Robert Galbraith, sr., who is still alive. It was then properly excluded, on the ground of irrelevancy, as it gives no present right of entry.'

Judgment affirmed.


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    Stevens v. Wylie.
    A. having a warrant and survey, in 1786, andapatentin 1788, fora tract, on which residence had been continued, is protected for an interference with a survey made in 1785, which had not been returned for fifty years, even though such survey was made under a claim for an earlier improvement, which was proved by parol to have existed and been continued; the interference not being in the actual occupation of either party.
    In error from the Common Pleas of Washington county.

      Oct. 29. Ejectment for an interference of eight and a half acres. The plaintiff showed an application of David Redick, September 7, 1786, for two hundred acres, including his improvement made in 1776, and the improvement made by Torrence, on which he lived. Interest from March 1, 1776. , But of these improvements there was no proof. A warrant issued thereon September 7,1786, and a survey was made by Hoge, a deputy-surveyor, July, 1787, on which a patent issued to Redick in July, 1788, from whom plaintiff derived title in 1818.
    The defendant proved an application by Stokely, September 24, 1785; interest from March 1, 1777; a warrant issued the •same day with a survey in June, 1787, entered in .David Redick’s books, who was a deputy-surveyor. This warrant had not been returned in 1889, but in 1841 a patent issued to one Wilson. These two surveys interfered, as appeared from the marked lines, and for that interference this action was brought. Both tracts had been settled by the respective owners, but the interference remained uncleared, and had been in controversy for a long time. It was agreed to try the cause on the same evidence as had been given on the former trial, (which case is reported 1 Barr, 458,) excepting the testimony of Leet, an aged and infirm witness, whose examination was taken and read by the defendant. He stated that the Stokely survey was entered in Redick’s book and in Redick’s handwritings and that he knew the tract when eleven years old, (which from his age must have been prior to 1783,) and then a man named Holmes lived on it, and it had been occupied ever since. The plaintiff gave in evidence the decision in his favour of the Board of Property in Í838, on a caveat to the acceptance of-Stokely’s survey, entered in 1834, which stated the survey in 1785 had never been returned.
    The court instructed the jury that though, under the decision of this court, the fact that Redick having made the survey for Stokely did not bar him under his subsequent warrant, so far as it interfered with that; yet as there was no evidence of an improvement on Redick’s tract prior to his survey, and there was evidence of an improvement on Stokely’s survey as early as 1779, and the evidence of Leet showed Stokely to have been in possession at the date of Redick’s warrant, that possession would equally protect him from Redick’s warrant as from other subsequent warrants or settlements.
    Williams, for plaintiff in error.

      Marsh, contó.

      Nov. 8.
   Coulter, J.

The proposition of the court below, upon which they made the cause to turn, would doubtless be correct, if there was nothing else arising out of the circumstances and facts to control its operation and to guide the judgment. But admitting that Stokely did take possession of the tract, marked his boundaries and resided on it either by himself or tenant, and would therefore be protected from subsequent warrants and surveys, still the case is left within the full dominion of the principles established, when the cause was before in this court: 1 Barr, 458. The court asserted that the fact as to whether either of the parties had made an improvement previous to the dates of their warrants respectively, was wholly immaterial. But the defendant in error, notwithstanding -this, produced evidence of Mr. Leet, an old gentleman, not able to be brought into court, for the purpose of showing that Stokely’s improvement commenced in 1784: that a man by the name of Holmes lived on it. He (the deponent) was then eleven years old. The ground on which this court proceeded, was that a patent had issued to Redick more than fifty years ago, on his warrant and survey. That a decision has since been made by the board of property in the year 1838, in favour of the Redick title, and that he and his alienees having been in possession since the date of the survey in 1787, it ought not now to be shaken or disturbed'by loose and dim recollections of events sixty years since, which goes beyond the ordinary life of man. This principle would appear to be sound, and to conduce to the quietude and peace of society, and the certainty of titles to estates. When shall the anxieties of the early settler or his heirs be put to rest ? If when an individual has slept upon his patent for sixty years, save two, he is to be waked up to anxiety, litigation, and loss, who can say that he is secure, and that too depending upon the testimony of a single witness, as in this case, whose memory is but flickering in its place. All the analogies of kindred subjects are in favour of the principle asserted by the acute and experienced judge who delivered the opinion of this court.

The court below, after shaking its head at the principle established when the case was here before, in relation to the survey of Stokely, and its not having been returned until 1841, although it was made in 1787, and after making a sort of protestando, nevertheless instruct the jury accordingly: it is unnecessary, therefore, to say any thing on that part of the case.

The plaintiff in error may even have it in his power to explain, rebut, or contradict the testimony of Mr. Leet, relative to the settlement of Holmes. But, relying on the declaration in the opinion of the Supreme Court, that under all the circumstances of the case,it was immaterial who had the first improvement, he may have thought it unnecessary to make any preparation on that branch of the case.

We are of opinion that there is error in the charge of the court below, and the

Judgment is reversed, and a venire de novo awarded.


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    Renshaw v. Gans.
    Parol evidence is inadmissible to reform a written contract according to the intention of the parties, nnless the declaration specially sets forth the fraud as a ground for such reformation.
    To insist upon the legal effect of a written agreement, when an exception was not inserted, on the expressed understanding of the parties, that such excepted matter was not embraced in the agreement, is such a fraud as will admit parol testimony to reform the contract accordingly.
    Vendee in possession under a title, doubtful by reason of fraud in a prior conveyance, purchased the land in the name of another, under the judgment of one of the defrauded creditors. He must pay the price agreed upon to his vendor, deducting the amount paid by him at the sheriff’s sale, since he has not abandoned his purchase, and under all circumstances has obtained a perfect title.
    In error from the Common Pleas of Fayette.

      Nov. 1. Renshaw brought covenant on articles for the purchase of land by Gans, and declared upon the written agreement, without any averment of fraud, &c.: the articles stipulating for payment of $1000, “so soon as Renshaw makes a warranty deed for the lots.” Rut the deed tendered, pursuant to the articles, contained a general warranty, “ excepting quit-rents.”
    The defendant gave evidence tending to show that Renshaw held under a conveyance by one Schoyer, which was fraudulent as .to creditors, and there was some notice on the' title-papers of that fact. He also, proved that under one of these defrauded judgments, there had been a sale of the property, as Schoyer’s, to one' Howell, since the date of the articles sued on.
    The plaintiff then proved that Howell purchased at the sheriff’s sale at the instance of, and for Gans. He then proved by the scrivener, that Gans agreed to take the property, subject to the quit-rents; “that the principal reason why it was not put in the articles of agreement was, that the parties, together with myself,, concluded that it was not necessary, as we thought it could in nowise affect the title to said lots in the least, as- it was considered by us to be of the same nature of the annual taxes, from the payment of which the lots could never be relieved but' by consent of the owner of them.”
    The defendant excepted to this testimony, because “ it does not explain any ambiguity, and does not allege or prove any mistake or fraud in the articles.”
    The exception to the charge was on the prayer — -that if there was a doubt about the title, and defendant would be exposed to a lawsuit, he should not be held to his bargain. The court, Ewing, P. J., said, this was true as a general proposition; but if the purchaser, instead of relinquishing his purchase, holds to it, and purchases in the only claim which created any doubt in the title, he might be compelled to pay the purchase-money, deducting the amount paid to perfect the title.
    The admission of the testimony, and the charge, were the errors assigned. \

      Patterson, for plaintiff in error,
    contended that the evidence was inadmissible, to vary the deed: Collam v. Hocker, 1 Rawle, 108; Stine v. Sherk, 1 Watts & Serg. 195; Farmers v. Fordyce, 1 Barr, 454; Stub v. Stub, 3 Barr, 251; Hain v. Kalbach, 14 Serg. & Rawle, 159. And that, if admissible under any aspect, it was not here for want of an averment in the pleadings: Clark v. Partridge, 2 Barr, 13.

      Deford and Veech, contra.
    The misrepresentation of the effect of an agreement must be made good, and parol evidence is admissible to show that: Tyson v. Passmore, 2 Barr, 122; Fisher v. Worrall, 5 Watts & Serg. 478; McGinnis v. Noble, 7 Watts & Serg. 454; Le Fevre v. Le Fevre, 4 Serg. & Rawle, 241; Fox v. Foster, 4 Barr, 119; Christy v. Reynolds, 16 Serg. & Rawle, 258; Partridge v. Clarke, 4 Barr, 166.

      Jan. 1.
   Bell, J.

It is not perceived how, upon the question of admissibility of the parol proof to reform the written agreement of the parties, this case can in principle be distinguished from Hurst’s Lessee v. Kirkbride, cited in 1 Binn. 616; Christ v. Diffenbach, 1 Serg. & Rawle, 464; Clark v. Partridge, 2 Barr, 13, and other kindred determinations. These settle the law of Pennsylvania to be, that a written instrument may be modified by parol evidence of what passed between the parties, at or about the time of its execution, in cases of fraud, mistake, or trust. As in Clark v. Partridge, there was, in the present instance, no mistake as to the contents of the written article, though there seems to have been a misapprehension as to its legal effect; nor was any trust contemplated, but the evidence was admissible upon the foot of fraud; for, as was well observed by Mr. Justice Huston, in Parke v. Chadwick, 8 Watts & Serg. 98, it is as much a fraud to obtain a paper for one purpose, and use it for a different and unfair purpose, as to obtain it by a fraudulent statement. All the cases show, that to pave the way for the reception of oral declarations, it is not necessary to prove a party was actuated by a fraudulent intention at the time of the execution of the writing. His original object may have been perfectly honest and upright; but if to procure an unfair advantage to himself, he subsequently deny the parol qualification of the written contract, it is such a fraud as will, under the rules, operate to let in evidence of the real intent and final conclusion of the contractors. Here, if the testimony is believed, the defendant expressly agreed to accept a conveyance of the property, which was the subject of the contract, burdened with the encumbrance of the quit-rents. This agreement was not inserted in, and made a part of the written article, only because both the parties conceived the rents to be in the nature of annual taxes, and therefore, as I understand the testimony, not coming within the description of the encumbrances intended to be guarded against by the stipulation for a “ warranty deed.” The defendant, by his own act, proceeding upon a misapprehension, having prevented the introduction 'of a provision into the articles, in conformity with his oral agreement, it would be inequitable to permit him to escape from his contract by a rule of evidence devised to prevent fraud.

But though it is clear, under the principle I have indicated, that in a proper case the evidence would be good for the purpose for which it was offered, we think that under the pleadings, as they at present stand in this cause, it should have been rejected. It is intraducibie only on the ground of fraud. The plaintiff necessarily founds his case, in part at least, upon the attempted fraud; for to warrant the tender of a conveyance with a warranty against all encumbrances, except quit-rents, he is obliged to introduce evidence of the imputed misconduct of the defendant, and thus makes it a part of his cause. He says, in effect, it is true the deed I tendered to your acceptance is not in accordance with my written covenant, but you agreed, verbally, to accept such a conveyance, and it is a fraud in you now to deny it. Now, it is settled by Clark v. Partridge, that, under such circumstances, the plaintiff must set out the facts in his declaration, and specially aver the fraud, in order that notice may be given to his antagonist what he will be called on to meet at the trial. This plaintiff, however, contented himself with a simple recitation of the article of agreement, with an averment of performance by himself, and non-performance by the defendant. But the proof offered did not sustain this statement of his cause of action, and therefore it was, the plaintiff found himself compelled to take another step, dehors the narr. by the introduction of the parol proof complained of. This it was not competent for him to do, under the authority cited; and hence an error was committed in its reception, for which the judgment must he reversed. Perhaps the plaintiff can so amend his pleadings, upon a second trial, as to avoid the difficulty. This will be for him to consider.

The answer of the court below to the defendant’s second proposition submitted, is correct. At the time of the sale of the premises, in satisfaction of the judgment recovered by Kugler & Co. against William Schoyer, Grans, the defendant, was in possession, without having paid, or in any way satisfied the plaintiff’s claim for purchase-money. He had, therefore, in his hands the means of paying the only encumbrance which brought his title into danger, and, as it.is clear, the property was purchased at the sheriff’s sale by Mr. Howell, at his instance, and for his benefit, this part of his defence is brought within the operation of the equitable principle ascertained and settled in Harper v. Jeffries, 5 Whart. 40, and McGinnis v. Noble, 7 Watts & Serg. 454, which restrains a purchaser, under such a state of facts, from withholding more of the purchase-money than is required for the discharge of existing encumbrances. Upon payment of the judgment under which the premises were sold, Howell will stand as a trustee for the defendant, for whose use he holds the legal title.

Judgment reversed, and a venire de novo awarded.


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    Casporus v. Jones.
    The plea of non-tenure as to the whole, in an action of dower, is, it seems, in bar.
    This plea, being in. the nature of a dilatory plea, requires an affidavit of its truth, under a rule of court relating to dilatory pleas. But the want of an affidavit is waived by joining issue.
    In error from the Common Pleas of Fayette.

      Nov. 1. Sarah Jones brought an action of dower unde nihil habet, $c. against Casporus and Patterson. Casporus pleaded ne unques seisi que dowér, and that husband of demandant is yet living, and issue was joined. Patterson pleaded « non-tenure,” and issue was joined. On the trial, Patterson produced his plea, drawn out as follows: “A. Patterson pleads non-tenure, that at the time of the issuing of demandant’s writ he was not, never has been, and still is not the tenant in possession of the premises,” but no affidavit was annexed. On the trial Casporus withdrew his previous pleas, and tendered a plea that “ he was not, &e., tenant of the freehold of the premises,” which was rejected for want of an affidavit, under a rule of court which provides that no dilatory plea shall be received unless supported by affidavit. The.court thereupon gave judgment for demandant, and this was the error assigned.

      Patterson and Sowell, for plaintiff in error.
    The plea of non-tenure is in bar : Merrill v. Russell, 1 Mass. Rep. 469; William v. Gwyn, 2 Saund. 44, note 1; 2 Tr. & Hal. Pract. 194; 1 Chit. Pl. 434; Sanback v. Quigley, 8 Watts, 462. And the want of an affidavit is waived by replying : 2 Saund. 3, in note. As to Casporus’s plea, it is good because no action lies against other than the tenant of the freehold: 2 Saund. 43, note 1; Lyle v. Richards, 9 Serg. & Rawle, 367; Seaton v. Jamison, 7 Watts, 536; Galbraith v. Green, 13 Serg. & Rawle, 94; Ward v. Winship, 12 Mass. Rep. 485.

      Veech, contra.
    Patterson’s plea denies possession merely, and not tenure ; but the plea is in abatement: Seaton v. Jamison, 7 Watts, 540; 3 Chit. Pl. 1320; The court were therefore right in disregarding these pleas, since they were not sworn to: Ralph v. Brown, 3 Watts & Serg. 395; Rapp v. Elliott, 2 Dall. 184; Vicary v. Moore, 2 Watts, 458.

      Nov. 9.
   Rogers, J.

The plea of non-tenure may be pleaded in abatement, as is ruled in Seaton v. Jamison, 7 Watts, 540, and so are all the authorities. But that it must be so pleaded although asserted in that case, is not so clear. The plea not only goes to the present right of action, but also shows that the plaintiff cannot maintain any action at any time against the defendant in respect of the supposed cause of action, and this is the distinguishing characteristic of a plea in bar. Whenever the subject matter of the plea or defence is, that the plaintiff cannot maintain any action at any time, in respect of the supposed cause of action, it may and usually must be pleaded in bar; but matter which merely defeats the present proceeding, and does not show that the plaintiff is for ever concluded, should in general be pleaded in abatement. The criterion, or leading distinction between a plea in abatement and in bar is, that the former must not only point out the plaintiff’s error, but must show him how it may be corrected, and furnish him with materials for avoiding the same mistake in another suit, in regard to the same cause of action; or, in other words, must give the plaintiff a better writ, These are the general rules: but there are some matters of defence which may be pleaded either in abatement or in bar. Of these, several instances are given in 1 Chit. Plead. 434-5; and although not enumerated, I am rather disposed to think non-tenure may be added to the number. The plea here, however, does not pray judgment that the writ should abate. It has no conclusion; so that we are at a loss whether to treat it as a plea in abatement or in bar. But whether one or the other — and there is a conflict of authorities on this point —non-tenure is treated in all o’f them as a dilatory plea, and is usually used as a sham plea, and intended for delay; it therefore comes within the rule of court, which requires it should be supported by affidavit. This disposes of the judgment against Casporus. But how does the case stand as to the judgment against Patterson ? The plea of non-tenure as to him was regularly put to issue, and ready when the cause was called for trial. It was therefore too late for the plaintiff to ask judgment for want of an affidavit. By replying to the plea, he waives the objection of form. The court was therefore wrong in giving judgment against Patterson for want of an affidavit.

The plea of non-tenure was drawn out at length, but when does not appear. It is not a new plea, but the cause continued at issue as before. Whether the plea is bad because it fails to allege that he was not tenant of the freehold, it is not necessary to determine. But admitting it to be a defective plea, it cannot be treated as a nullity, and judgment rendered against the defendant on that ground. The validity of the plea must be tested on demurrer, and then the defendant will be entitled to amend.

Judgment against Patterson reversed, record remitted, and procedendo awarded. Affirmed as to Casporus.


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    West v. Stewart.
    Conveyance of a lot of land, together with the buildings, and covenant of warranty of the lot, and hereby granted premises with the appurtenances: the removal of a building by the tenant, under a prior agreement with the grantor, is a breach of the covenant of warranty.
    In error from the Common Pleas of Fayette.

      JNbv. 1. Covenant. The plaintiff showed a deed by Stewart to West, conveying “ the following described lot, &c., together with the buildings and improvements, hereditaments, and premises thereunto belonging, or in anywise appertaining, and tbe reversions,” &c. The warranty was special for “ all and singular the lot of ground, No. 256, aforesaid, the hereby granted premises, with the appurtenances unto,” &c. He then offered to prove, that there had been a house on the premises at the date of the deed, erected by the tenant under an agreement with Stewart’s agent, that he should be permitted to remove the same, and that it had been removed. The rejection of the evidence was the1 error assigned.

      Deford and Veech, for plaintiff in error.
    The warranty extends to houses and buildings: Touch. 184; so to a log cabin: 3 Bibb. 51. And notice to the plaintiff is immterial: 8 Mass. 146.

      Howell and Patterson, contra.
    The warranty is special only as to the parties against whose acts he agrees to protect the grantor. In other respects, it is exactly like all warranties used in this state. And it is well settled, an eviction from the land ig essential to a breach of the warranty: Whitehill v. Gotwalt, 3 Penna. Rep. 313. Nor is this such an eviction as the law recognises: Jac. Dic. Eviction. The remedy is pointed out in Seitzinger v. Strohecker, 1 Rawle, 382.

      Nov. 12.
   Coulter, J.

The evidence rejected by the court below, and which rejection is assigned for error here, ought to have been admitted. Andrew Stewart sold and conveyed to Enos West a lot of ground in Columbus, Ohio, with all and singular the buildings and improvement, hereditaments and appurtenances thereunto belonging, and covenanted to warrant and defend the lot of ground and the premises so as aforesaid granted, with the appurtenances, unto the said Enos West, his heirs and assigns, against the said Andrew Stewart, his heirs and assigns, and against any person claiming the same, or any part thereof, by, from, or under the said Stewart, or any other person or persons lawfully claiming the same. The buildings were removed by a certain person named Warner, under a contract made with Stewart, before he, Stewart, sold to West. It would appear that Warner had erected the buildings under a contract with Stewart, and that, by the terms of the contract, Stewart agreed that Warner should be at liberty to remove the buildings when his term had expired. This action of covenant is brought on the covenant of warranty, and the plaintiff, West, to establish the breach assigned, which was the removal of the buildings, offered to prove, that at the time of the execution of the deed, there was a house on the Jot, which the tenant, Warner, removed; also the value of the house, and the sum it would bring on rent; and also in connection with the record of a suit, which West had instituted in the courts of Ohio, for the removal of the house, parol evidence that it was removed in pursuance of the above-mentioned contract with Stewart. The court rejected the evidence.

It was contended here, that the removal of the house Was not a breach of the warranty, and that Stewart had no title to the house, and therefore it was not under title derived from him that Warner claimed and removed it. The covenant is special, and extended much farther than 'the termjipf a general warranty; and it is upon its peculiarity and comprehensiveness that the judgment of this court is founded. It is true, that in general, a covenant of general warranty is not broken without eviction; but the rule is not universal. If it were, however, what is a more thorough eviction than the absolute removal or destruction of the property conveyed, if the act is done in pursuance of a title superior to that of the grantor at the date of the deed? and what would constitute a more complete breach of the covenant, against the grantor and his heirs, than the removal of the house by a title derived from him, anterior to his deed to West? It will not do to say that Stewart had no title to the buildings, and therefore that he could not grant them to Warren. Because, when an individual erects houses on the lands of another, they become attached to the freehold; and neither the person erecting them, nor any other, can remove them, except under a grant or license from the owner of the ground. It wras under the contract with Stewart, and under that alone, that Warren was authorized to take them from the freehold. But if Stewart had no title to the house, the covenant of warranty is broken on the instant of the execution of the deed. For he had rendered himself, by his own act, unable to comply with it, and made it utterly impossible for West to defend the possession, or maintain it at law. A covenant to convey property, or to do any other act, is broken by the covenantor, if, before the time for performance, he destroys the property to be conveyed, or puts it out of his power to do the act which is the subject of the covenant: Hopkins v. Young, 11 Mass. Rep. 306; also 16 Mass. 161. Here Stewart had put it out of his power to comply with his covenant of warranty. So it has been ruled that a general warranty of a slave is broken, if, at the time of the sale, the slave was in fact free: 6 Johns. 49. But this is not a mere general warranty of land: it goes much beyond it; and, like every other contract, must be construed according to tbe intent of tbe parties as collected from the contract. The sale is of the lot, and the buildings thereon erected, and the hereditaments and appurtenances ; and the warranty is of the lot and premises thereby granted against himself, and all persons claiming the same, or any part thereof, under him, and against all other persons. The house was distinctly conveyed, eo nomine, and the lot and premises granted, and every part thereof was, within the warranty, against any person claiming under Stewart. Warner did claim under Stewart, because he claimed under the permission from him to remove the houses — claimed under Stewart by a title which it was impossible for West to resist. It seems to me, that a mere statement of the case is the strongest argument which can be made to show that the removal of the house was a breach of the covenant, and that words are almost wasted in argument to establish it.

The defendant in error cannot take refuge behind some decisions on the subject of general warranty, which only covered the title to land at the time that covenant was devised. Since that period things have changed, and a house is now often the most valuable part of a lot: then houses could not be removed. But now they can. Modern art is sufficient to remove the most costly brick or wooden tenement, and parties make their contracts in relation to the existing state of things. Hence the enlargement of the covenant in the ease before us. The evidence offered conduced to prove the breach alleged in the declaration, and should have been admitted.

Judgment reversed, and a venire de novo awarded.