
    Vincent against The lessee of Huff.
    An indorse-of^epury-sur-f L.,” on the official draft of a time fhe sui-6 ofu'proper'evb’ denosto be the jury, to applioaiinged!*1^ E"
    . ^,s ”° °5" jection toadeposition, that uti'cioTe™" taken under a rule of Court, if it be annexed to a certified copy of the rule of Court under which it was taken.
    "Whether the witness, whose deposition is offered in evidence, be able to attend the trial or not, is a matter which the Court below are to inquire into and decide.
    The assertion of a party at the time of paying money, “ 'This is the amount of 1\ (naming a tract of land); it is mine nowf is evidence, if made to a person entitled to receive the money and not contradicted, or if spoken to another in so loud a voice as to make it quite certain that the words were heard by the receiver of the money.
    Evidence that the witness ^understood that it was the former owner of the land that received the moneyf is hearsay, and inadmissible.
    To leave the construction of a deed to the jury, is error.
    "Where one-enters into a parol agreement to sell land, and delivers possession without having received any part of the purchase money, the legal estate remains in him, and descends, at bis death, to his heir at law ; and if the heir convey to another, by general words, all the real estate of which his ancestor died seised, the land, in reference ‘to which the agreement was made, passes to the alienee, subject to the agreement.
    If A. has an equity in a tract of land, under agreement whh B.; that equity descends, at his death, to his heir at law, aud no act of his widow will transfer it to C. The heir must transfer his right to C., or at least acquiesce in C’s taking his place and completing the contract, before C. can derive any advantage from it. If, without making any conveyance to C , the heir of A. relinquish the contract, and a new agreement be made with C. by the heir of B , the consent of D.9 to whom the heir of JB. had conveyed all th* real estate of which his ancestor died seised, would be necessary to give it effect $ for although JD. held the legal title, subject to the contract with A.9 he did not hold "it subject to any agreement which the heir of B. might make with any other person. No writing signed by the heir of JB., either in that character or as administrator of B.} without the assent of jD-, would pass any right to any other person than the legal representative of A.
    
    
      If A purchase the right of to land under an application and survey, he is answerable to the Commonwealth for, the purchase money, and is not bound to pay it till called upon ; and if the representatives of B. obtain a patent, not at the request of A. nor for his benefit, but for the purpose of vesting the title in themselves, A. may recover in ejectment against them, or those claiming under them, without previously tendering the money expended in procuring the patent.
    In Error.
    WRIT of error to the Common Pleas of Lycoming county, in an action of ejectment brought by the lessee Edmund Hujf, the defendant in error, against Peter the plaintiff in error.
    Both parties claimed under Jesse Lukens. The plaintiff gave in evidence an application for three hundred acres land in the name of John Palmer, and a survey thereon of of one hundred and seventy acres on the 7th of October, 1771, on the official draft of which was the following dorsement, “No. 1109, Berks, now Northumberland, Paimer, now Jesse LukensP The defendant’s counsel objected to the readme- of the endorsement : but the Court overruled ° 7 the objection. Jesse Lukens died towards the end of the year 1775, and letters of administration on his estate were granted to his father, John Lukens, and his only brother heir, Charles Lukens, on the 13th of February, 1776. Oh the 22d of February, 1776, Charles Lukens, who, according to the law at that time, inherited all the real estate of his brother Jesse, executed a deed by which he couveyed all the lands and real estate in which his brother had any interest at the time of his death, to his father, John Lukens, subject to all the debts of his said brother. John Lukens died in the year 1789, and on the 20th of August, 1790, a patent for the land surveyed on John Palmer's application, was issued to his executors, Joseph. J. Wallis, David Lenox, and Abraham Lukens, in trust for the uses mentioned in his will. Peter Vincent, the defendant, shewed a title under this patent. The plaintiff claimed under Jesse Lukens, through a certain Levi Jones, who, having made an improvement on the land in dispute, and as it was alleged, an agreement for it with Jesse Lukens, was afterwards killed by the Indians, leaving a widow, but no children, and a brother, named Peter. No written agreement was produced, nor was there any direct proof of an agreement of any kind, between Jesse Lukens and Levi Jones, but the plaintiff offered in evidence a writing without date, signed by Charles Lukens, for himself and John Lukens, administrators of Jesse Lukens, to the following effect: “ John Lukens and Cha> les Lukens, administrators, &c. of all and singular, &c. of Jesse Lukens, deceased, do promise to convey to Levi Jones, a certain tract of land lying on the south side of the West Branch of the Susquehanna, at the mouth of Thangascootack Creek, he paying fifty pounds per hundred acres: the first payment to be fifty pounds without interest on the 1st May, 1778, and the remainder,in one year after.” On the back of this paper was the following endorsement, signed by Jane Jones, widow of Levi Jones, “ I do hereby assign over all my right, title, interest, property, claim, and demand, of, in, and to, the within assumption of John and Charles Lukens, as witness my hand. 24fü Deember, 1778.” The plaintiff also offered in evidence another writing, signed by “ Charles Lukens, one of the administrators of Jesse Lukens, deceased,” in these words: “ Carlisle, 1st March, 1779. Received of Edmund Huff, the sum of fifty pounds in part for a tract of land at the mouth of Thangascootack Creek, on the West Branch of the Susquehanna, sold by Jesse Lukens to a certain Levi 
      
      jones; the land sold by said Lukens to said Jones at fifty pounds per hundred acres ; if any agreement should appear, by which the said Levi Jones ought to pay interest, it to be allowed by Edmund Huff-” On the back of this writing was the following endorsement, signed, '■'■Charles administrator.’’ “ On payment of the residue, I promise to convey the premises to Edmund Hujf or other legal representative of Levi Jones.” An objection was made by the defendant’s counsel to the admission of these papers, but the Court permitted them to be read. The deposition of Adam Walker was then offered by the plaintiff, objected to by the defendant, and admitted by the Court. The witness stated, that between the years 1781 and 1783, he saw Edmund Huff" pay fifty pounds on the purchase of Thangascootack in the witness’s house at Sanbury; “ that when said Huff made the payment, he said, * This is the amount of Thangascootack; it is mine now;’” that the widow Jones was present, and “ he understood that she was the wife of Levi Jones that was killed by the Indians on the Thangascootack bottom;” that there was a number of men present, one of whom was of the name of Lukens or Wallis, who got the money from Huff; that the widow Jones wanted it, but did not get any, and complained of not getting it; and “ that he understood that it was the former owner of the land that received the money from the said Huf.” The parts of the deposition which are in italics, were likewise objected to, but the objection was overruled by the Court. Several other exceptions to evidence, were taken during the trial, but were not insisted on afterwards.
    In charging the jury, the presiding Judge, when speaking of the deed of the 22d of February, 1776, from Charles Lu-kens to his father, John Lukens, said, that “by this deed, Charles Lukens conveyed to John Lukens all the real estate of Jesse Lukens, which he, as heir at law of Jesse, was then seised of; and this land would pass by that contract, unless the jury were satisfied that Levi Jones was then in possession, under a contract with Jesse Lukens in his life time. And as this was a conveyance without describing any particular tract, it could not be supposed that it was the intention of the par ties, that land should pass which had been previously disposed of.”
    To this opinion, a bill of exceptions was tendered by the counsel for the defendant, and sealed by the Court.
    The counsel for the defendant then requested the opinion of the Court on nine points which were submitted to them ; to the answers to the following of which, exceptions were taken:
    2. That Edmund Huff", from the papers produced by him in evidence, was a mere volunteer, not entitled to any equity which Levi Jones may have had ; and that the payment of money by him to the administrators of Jesse Lukens, for the lands in question, vested in him no right, without shewing that the title of Levi Jones had been transferred to him.
    
      Answer. As Levi Jones did not fulfil his engagement with the administrators of Jesse Lukens, they were at liberty to sell the land to Edmund Huff and receive his money, and the jury will judge whether they, or either of them, did sell and receive the money of Edmund Huff, and if so, Edmund Huff would not be considered as a mere volunteer ; and as Levi Jones was dead, and had no children, and no person came forward as his heir at law to perform his agr< ement with Lukens, Huff was not bound, after so great a lapse of time, to .shew any transfer to him from Levi Jones, or his legal representatives.
    4. That neither the paper signed by Charles Lukens, as administrator for himselj and John Lukens, promising to convey the land in question to Levi Jones, nor the paper dated December 24th, 1778, signed by Jane Jones, nor the paper dated, Carlisle, March 1st, 1779, signed by Charles Lukens, one of the administrators of J. Lukens, deceased, nor the endorsement thereon, signed by Charles Lukens, administrator, vests any title to the land in dispute, either in law or in equity, in the plaintiff, or entitles him to call for a conveyance from the heirs of Jesse Lukens.
    
    
      Answer. The papers referred to, do on the payment of the balance of the purchase money, entitle Edmund Huff, in law and in equity, to call on the heirs and legal represeutatives of Jesse Lukens, to convey to him the land in dispute.
    6. That privity or no privity, is a question of law to be decided by the Court, who are requested to state as the law of this ease, that no privity whatever exists between the plaintiff and the representatives of Levi Jones, and the representatives of Jesse Lukens, to entitle the plaintiff to a conveyance of the land.
    
      Answer. The payment of the purchase money by Edmund Huff, does give him an equitable claim upon the representatives oí Jesse Lukens for a conveyance. There is no evidence of any privity between Levi Jones, or his heirs and Huff; but if the jury believe that the administrators of Jesse Lukens have received of Huff the purchase money and interest in full, an equity arises in his favour, and they should have conveyed the land to him.
    7. That neither the plaintiff nor the representatives of Levi Jones, could recover under an equitable title, without first paying or tendering, the whole of the purchase money and interest, and all the money paid to the Commonwealth for the purchase money and patenting fees, and also tendering a deed to be signed by the representatives of Jesse Lu-kens, for the land in controversy.
    
      Answer. Unless Edmund Huff has paid the whole of the purchase money and interest due to the heirs or legal representatives of Jesse Lukens, of which the jury will judge, he cannot recover. But under the circumstances of this case, if he has paid all the money called for by the agreement, he may recover without a further tender of patenting fees, or a deed for the land claimed.
    8. That Charles Lukens, as administrator of Jesse Lukens, had no right to sell the land in dispute ; he having long before conveyed the fee to John Lukens, by deed dated 22d February, 1776, subject to the payment of the debts of Jesse Lukens ; the plaintiff not having produced in evidence any subsequent conveyance proved and recorded before the aforesaid deed.
    
      
      Answer. Charles Lukens was heir at law to his brother, Jesse Lukens, and co-administrator with his father, John Lukens ; and if he sold the land and received the purchase money, when the deed of 22d February, 1776, was not upon frecord, and the purchaser had no notice of that conveyance, it would affect John Lukens, his father, and co-administrator, as the land is not described in that deed. If Jesse Lukens had previously sold this property to Levi Jones, it would account for the subsequent transactions.
    9. That if the jury believe that Levi Jones made valuable improvements on the land before his death, the equity thereof would enure to his heir at law ; and a conveyance from Lem Jones to the plaintiff is not to be presumed, but the contrary ; particularly after the judgment against him in 1793, and the delay from that period until 1799, when this ejectmeut was brought.
    
      Answer. The law is conceded, that if Levi Jones had made valuable improvements on the land before his death, the equity thereof would enure to his heir at law, or legal representatives; and from the facts disclosed in this cause, a conveyance from Levi Jones, is not to be presumed ; but it is in evidence, that all the improvements of Levi Jones were destroyed during the war, and that he was killed by the Indians; and there is no evidence that he paid any money, or that any person ever appeared as his heir at law, to claim his contract with the admininistrators of Jesse Lukens.
    
    The cause was argued in this Court, by Greenough, for the plaintiff in error, and Bellas and Burnside, for the defendant in error.
   The opinion of the Court was delivered by

Tilghman C. J. —

In the course of the trial, the counsel for the defendant took several exceptions to evidence, and an exception to the charge of the Court.

1. The first exception was to the endorsement on the draft of John Palmer's survey, “ John Palmer now Jesse Lukens." It was contended, that this endorsement was not evidence, because the deputy surveyor had nothing to do with the property — his business was, to make the survey and return it. But, considering the well known practice of entering applications in the name of one man in trust for another, it has been usual to admit evidence of what was done at the time of the survey, in order to shew the person to whom the application really belonged. The appearance on the g>ound, and giving directions, the furnishing of provisions, and paying the expense of the survey, have been considered as material circumstances. The endorsement in question, may be considered as the Act of the surveyor, at a time when there was no dispute ; and though not strictly part of his duty, it was by no means inconsistent with his duty. The name of the person mentioned in the application, was always endorsed on the official draft, and where the real owner was known to the deputy surveyor, it was not uncommon to add it, as was done in this instance, it was a circumstance proper to be submitted to the jury, who would give it what weight they might think it deserved. Such evidence has been received in other cases, and was determined to be proper in this verv case, when it was in this Court before, as will appear from the report in 4 Serg. & Rawle, 298. And the Court then pointed out the distinction between this endorsement, which is agreeable to the practice of deputy surveyors, and endorsements of a different nature, in which the officer undert kes to make a statement of facts unconnected with his official return. I am of opinion, therefore, that this'evidence was proerly admitted.

The second exception was relinquished.

The third exception was to the deposition of Wm. Walker. There were several immaterial objections to the reading, of any part of this deposition, viz. u that' it was not entitled." That “ it is not expressed to be taken under a rule of Court." That “ it was doubtful zvhether the witness was not well enough to attend the trial" and if he was, his deposition was not evidence. To the two first of these objections it is a sufficient answer, that the- deposition was annexed to a certified copy of the rule of Court under' which it was taken. And as to the state of health of the witness, it was inquired into by the Court below, who were satisfied that he was unable to attend in person. But besides these objections which went to the whole deposition, there were others, to particular parts of it. The deponent swore, that he saw •Edmund Huff pay fifty pounds, (without mentioning to whom) and that when he made the payment, he said, „ This is the amount of Thangascutack; it is mine now.” These *ast worr*s were objected to. They would be evidence or not, according to circumstances. If the payment was made to a Person entitled to receive the money, and the words were addressed to him, or were spoken to another in so loud a voice that it was quite certain they were heard by the receiver of the money, they would be evidence, because if they were not contradicted, it would afford some ground for inference that they were true, and if true, the whole purchase money was paid. But another and more important objection, was to that part of the deposition in which the deponi nt said, that he miderstood that it was the former owner of the land, that received the money of the said Huff” This is a most important part of the case. In short every thing depended on it. If the deponent knew the person that received the money, he ought to have said so. If he did not know him, but was informed by another that he was the former owner of the land, the person who gave the information should have been produced and sworn as a witness. I consider the expressions used by the deponent, as equivalent to saying that he had been informed,, &c. and therefore no more than hearsay evidence. There was error therefore, in suffering that part of the deposition to be read to the jury.

The 4th exception was relinquished. >

The remaining exceptions, are to the charge of the Court. The President instructed the jury, “ that if fesse Lukens had agreed to sell to Levi Jones, and they were satisfied that Jones was in possession under the agreement, at the time of Charles Lukens’s conveyance to John Lukens, then, inasmuch as the deed of conveyance did not describe any particular tract of land, it was not to be supposed that it was the intent of the parties that land should pass which had been previously disposed of.” It appears to me that this charge was wrong in several respects. It left to the jury the construction of the deed, which belonged to the Court; and so far as the Court intimated any opinion, it was erroneous. The intent of the parties, is to be determined by their words. This deed contains the most comprehensive words. It conveyed “ all the real estáte of which Jesse Lukens died seised or possessed, or in which he was, at the time of his death, any way interested, either in his own right, or which any person or persons held for him in trust, or in which he was any way interested, in any partnership or partnerships, or to which he was otherwise entitled.” Now there was not a particle of evidence to shew that Jesse Lukens had ever divested himself of the legal estate of this land. The most that can be said is, that he had made a parol agreement to sell and delivered possession, without having received the purchase money or any part of it. Consequently, the legal estate remained in him, and descended, on his death, to his brother Charles, who conveyed to John Lu-kens. At the time of that conveyance, it does not appear that any of the purchase money had been paid ; and if it never afterwards had been paid, I think it very clear, that John Lukens might have recovered in an ejectment. The Judge ought to have informed the jury, that the legal estate, having never been conveyed by Jesse Lukens, it descended to his brother Charles, and passed to John Lukens, by the general words in Charles's deed, subject to any agreement which Jesse Lukens might have made with Levi Jones.

The «next error assigned in the charge is, that the jury were told “ that the writings signed by Jesse Lukens, which have been mentioned before, and the assignment of the widow of Levi Jones, were sufficient, in law and equity, to enable Edmund Huff, to demand a conveyance from the heirs or legal representatives of Jesse Lukens, on payment of the balance of the purchase money.”

The law does not seem to have been accurately laid down, if Levi Jones had an equity in this land under his agreement with Jesse Lukens, that equity descended, on his death, to his brother Peter Jones; and his widow had no right to dispose of it. Some evidence should have been given, to satisfy the jury, that Peter Jones had transferred his right to Huff, or had at least acquiesced in Huff's taking his place, and completing the contract. And if upon the whole evidence, it appeared that Peter Jones, without making any conveyance to Huff, relinquished the contract, and a new agreement was made by Charles Lukens with Huff, it would have been necessary that John Lukens should have consented to that contract. John Lukens held the legal estate, subject to the agreement between Jesse Lukens and Levi Jones, but not subject to any agreement which Charles Lukens might make with any other person. Charles L ke-is hid no right, as one of the administrators of Jesse, to sell, the land to Huff. An administtator has no power over the land. Therefore no writing which Charles Lukens signed without the assent of his father John L kens, could pass any right to any other person than the heirs of Levi Jones. And indeed, Charles Lukens appears to have been sensible of ihis; lor he expressly engages to convey to Edmund Huff or other legal representatives of Levi Jones, on payment of the residue of the purchase money, t he jury ought therefore to have been instructed, that these writings did not, of themselves, authorise Huff to call for a conveyance on payment of the whole purchase money ; and that it was necessary, besides, to satisfy the jury, that the heir of Levi Jones had transferred his right to Huff, or at least that he had relinquished the contract; and in that case, the consent of John Lukens would have been necessary to make good the contract between Charles Lukens and Huff

The last error assigned in the charge, is, the opinion delivered by the Court, that the plaintiff' might recovei*without tendering to the representatives of Jesse L fens, the money expended in procuring a patent for this land. That opinion, I think, was right. Levi Jones purchased the right of Jesse Lukens, such as it was, under John Palmer’s application aud survey. He was answerable to the Commonwealth for the purchase money due to the late proprietaries, and was not bound to pay it, till the Commonwealth called for it. The executors of John Lukens did not obtain a patent at the request of Jones, or of Huff, or with an intent to confirm their title. On the contrary the patent was adverse to them, and for the purpose of vesting the title in the devisees of John Lukens. Under these circumstances, supposing the title of the plaintiff to have been in all other respects good, it would be too much to say, that he was bound to tender the money which had been expended with a view to injure him. Whether this money may be recovered from Huff, in case he should ultimately succeed in his suit for the land, I give no opinion ; but I am satisfied, the charge of the Court, on this point, was right. Upon the whole, then, I a-a opinion, that the Judgment should be reversed, and a venire de novo awarded.

Judgment reversed, and a venire facias de novo awarded.  