
    [Sunbury,
    June 28, 1824.]
    The Lessee of MAUS against MONTGOMERY and others.
    in error.
    The plaintiff after the commencement of an ejectment, entered into articles of agreement with IP., which recited the pendency of the suit, and that he had given to P. a power of attorney to prosecute it to judgment, and then proceeded to state, that the plaintiff had agreed to grant, bargain, and sell, and thereby did grant, bargain, and sell, the landin controversy to P.and Ms heirs,who was to prosecute the suit by virtue of the power of attorney, and if he should be successful, pay to the plaintiff 2000 dollars, and the plaintiff should then convey the land to Mm in fee; P. to bear the expenses of the suit; hut if the plaintiff’s title did not prevail, he was not to pay the 2000 dollars, nor any part thereof ’ Held, that this was an executory agreement, which did. not divest the title of the plaintiff
    The court are not bound to compel a party to join in a demurrer to evidence, consisting ffertly of written, and partly of parol proofs, unless the party demurring, concedes all the facts which the evidence has any tendency to prove.
    Eight bills of exceptions tendered by the plaintiff below, were returned with the record of this case, on a writ of error to the Court of Common Pleas of Columbia county. On the argument in this court, ail were abandoned except two; to understand which,-it is only necessary to state the following facts.
    The title of the plaintiff was founded upon an application, dated the 3d of Jlpril, 1769, No. 2297, in the name of Maurice Turner, for “ 30P acres of land in the forks of Mahoning Creek, about two. miles from the north east branch of the Susquehcmncth.” A survey was made on this application by William Scull, deputy surveyor, on the 20th of October, 1769. The claim of the defendants was derived from an application, dated 3d of April, 1769, No. 456, in the name of Alexander McDonald, for “300 acres of land, situate on the north branch of the Susquehannah, and on the north side of said branch, called Mahoning, adjoining Col. Francis’s land, on the said north branch, and about twelve miles from Fort Augusta.” The defendants gave parol evidence to prove, that the application on which their title was founded, was descriptive of the land in dispute, and that the plaintiff’s application was not so: That in the year 1771, a caveat was entered against the acceptance of Turner’s survey: That in the year 1773, possession was taken under MlDonald’s application, which had been held ever since: That due diligence had in all respects been observed, and valuable improvement made; and that William Scull, the deputy surveyor, was a relation of Turner, and had acted with partiality in making a survey for him, which ought to have been made for McDonald
    
    In the course of the trial, the defendants, for the purpose of showing, that the plaintiff’s title had been divested since the commencement of this action, offered in evidence articles of agreement, bearing date 3d of August, 1822, between Philip Mans, the plaintiff, and David Pretrekin. These articles recited the pendency of the present ejectment, and the title under which the plaintiff claimed, and that Maxis had given to Petrekin a power of attorney, to prosecute the ejectment to judgment. They then proceed thus:
    
      “ Now this agreement witnesseth, that the said Philip Mans, for, and in consideration of the sums hereinafter mentioned, hereby agrees to grant, bargain, and sell, and by these presents doth grant, bargain, and sell, unto the said David Petrekin, his heirs and assigns, for ever, all the above described tract of land, (for which the aforesaid action of ejectment is brought against John Montgomery and others,) with the buildings, improvementsj ways, woods, waters, water courses, rights, liberties, privileges, hereditaments, and appurtenances whatsoever, thereunto belonging or appertaining, to hold the same to the said David Petrekin,, his heirs and assigns, to the only proper use and behoof of the said David Petrekin, his heirs and assigns, for ever, they yielding and paying as hereinafter mentioned and reserved. And the said David PetreMn hereby agrees, in consideration of the above grant, to pay to the said Philip Mans, the sum of one dollar, the receipt whereof is hereby acknowleded by the said Philip, and the said David Petrikin agrees to pay the said Philip Mans the further sum of 2000 dollars, on a final decision of all law suits, controversies and actions respecting the said land, in favour of the said Philip Maus, between the said John Montgomery, and those claiming under him, and the said Philip, and those claiming under him, if the title of the said Philip shall recover, and hold said land. And further, the said David Petrekin agrees to pay all counsel fees for the above mentioned suit, and any other suits that may arise respecting the said land, and as attorney of said Philip, to attend to, and prosecute the same without pay for his services as attorney, out of said sum afore-mentioned. The said Philip Mans, his heirs, executors, or administrators,’ to make a good and sufficient deed or deeds of conveyance to the said David Peirikin, his heirs or assigns, for said tract of land, on the final termination of the suits and controversies aforesaid, in favour of the said Philip Mans’s title, on the payment of the aforesaid sum of 2000 dollars; but if the title of the said Philip should fail, then the aforesaid sum of 2000 dollars, or any part of it, is not to be paid by the said David Petrekin to the said Philij], nor is the said Philip to be accountable for any counsel fees- or services of the said David, or any other expenses the said David may be at in the prosecution of the said action.”
    The counsel for the plaintiff objected to the evidence, but the court admitted it, and sealed a bill of exceptions.
    When the evidence on both sides was closed, the plaintiff de-j múrred to the evidence given by the defendants. The defendants declined joining in the demurrer, and the court refused to compel them to"do so. This refusal was the subject of another bill of exceptions.
    The questions arising upon the bills of exceptions above-mentioned, were argued by Greenough and Bellas, for the plaintiff in error,
    who cited Irvine v. Campbell, 6 Bmn. 118. Marlin v. Willink, 7 Berg. fyJRawle, 297. Lessee of Stauffer v. Coleman, 1 Yeates, 393.
    
    
      Marr and Hepburn,
    
    who were to have argued for the defendants in error, were stopped by the court, whose judgment was delivered by
   Tixghman, C. J.

The defendants produced, and offered to give .in evidence, certain articles of agreement between Philip Mans, the plaintiff, and David Petrekin, for the purpose of showing, that the plaintiff’s title was divested, and he had no right to recover in the suit. The plaintiff excepted to the opinion of the court, who admitted the evidence. The writing, on its face, purports to be an article of agreement. — It recites, that this suit was depending, and that the plaintiff had given Petrekin a power of attorney to prosecute it to judgment — It then goes on to say, that the plaintiff had agreed to grant, bargain and sell, and he did thereby grant, bargain and sell, the land in controversy, to Petrekin and his heirs — after which, it is said, that Petrekin shall prosecute this suit, by virtue of the power of attorney from the plaintiff', arid if he shall be successful, he shall pay the plaintiff 2000 dollars, afid the plaintiff shall convey the land to him in fee— Petrekin is to bear the expenses of the suit, but if the plaintiff’s title does not prevail, Petrekin is not to pay the 2000 dollars, or any part thereof. Now, nothing can be more clear, than that this was an executory agreement, notwithstanding the words of immediate grant, inadvertantly introduced. We must take the whole writing into consideration, in order to judge of its intent, and operation. To construe it, as an immediate conveyance, would be in direct contradiction to the intent of the parties, manifested in almost every line. An immediate conveyance would disable the plaintiff from recovering in this suit; whereas, the intent was, that the suit should be prosecuted to judgment in the plaintiff’s name, and no money paid, unless he recovered;, and if he did recover, he was to execute a conveyance. It would be a waste of time, to multiply words, to prove the intent of this instrument. And as to the legal operation of a writing, plainly intended as an executory agreement, in which words of present conveyance are inconsistently introduced, we have authority for saying, that it shall be construed as executory, in the cases of the Lessee of Stouffer v. Coleman, 1 Yeates, 393, and Hoover and others v. The Lessee of Gonzalus, decided at the present term. There was error, therefore, in the admission of this deed in evidence, for the purpose of proving to the jury, that the plaintiff’s right was transferred to Petrekin, in consequence of which, he could not recover in this action.

There is another exception taken by the counsel for the piaintiff. WThen the evidence had been given on both sides, the plaintiff demurred to the defendants’ evidence. The defendants refused to join in demurrer, and the court would not compel them. To decide whether the defendants ought to have been compelled to join in demurrer, we must consider the nature of the defendants’ evidence. The plaintiff claimed under an application, dated 3d April, 1769, No. 2297., in the name of Maurice Turner, for “ 300 acres of land in the forks of Mahoning Creek, about two miles from the. north east branch of the Susquehannah.” On this application, a survey was made by William Scull, deputy surveyor, on the 20th October, 1769. The defendants claimed under an application, dated 3d April, 1769, No. 456, in the name of Alexander M‘Donald, “for 300 acres of land, situate on the north branch of the Susquehannah, and on the north side of the said branch, called Ma-honing, adjoining Col. Francis’s land, on the said north branch, and about twelve miles from fort Augusta.” The defendants gave parol evidence, in order to prove,1st. That their application described the land in dispute. 2d. That the plaintiff’s application did not describe it. 3d, That they entered a caveat in the year 1771 against the acceptance of Turner’s survey, took possession in 1773, and had held it ever since, and had in all respects prosecuted their claim with due diligence, and made valuable improvements. 4th. That William Scull, the deputy surveyor, being a relation of Turner’s family, had acted with partiality, in making a. survey for' him, which ought to have been made for M‘Donald. Now how was it possible-for the court to decide these things, which were matters of fact? Whether an application be descriptive of a certain tract of land, is simply and purely a matter of fact, which cannot be decided by an inspection of papers. The description in the written application, must be compared with the land which it is said to describe, and this can be no otherwise done, than through the medium of parol evidence. The defendants had a right to appeal to the jury for a decision of the matters on which they rested their defence, unless the plaintiff would concede them, which he could not do without giving up his cause. The defendants offered to join in demurrer, if the plaintiff would concede the facts which his evidence had a tendency to prove; and this they had a right to do, if the evidence offered but slight ground for drawing the inference for which they contended. But the plaintiff refused to make these concessions. The court was right, therefore, in not compelling the defendant to join in demurrer. ,

Duncan, J. took no part in the decision, having been of counsel in the cause.

Judgment reversed, and a venire facias de novo awarded. 
      
       Ante, page 314.
     