
    Share and another against Anderson and others, executors of Anderson.
    In Error.
    June.
    ERROR to the Court of Common Pleas of Lancaster • ' COUnty. , ...
    v This was an action of debt brought, by Mary Anderson and others, executors of James Anderson, against Henry Share and Christian Hershey, senior, to recover the amount due on a bond, executed by Henry Share and Christian Hershey, senior, to the said James Anderson, conditioned for the payment of 50,000 dollars, on the 1st May, 1815,. with interest from the 1st of March, 1814. On this bond the several sums of 6Ó0 dollars, and 700 dollars, had been paid and credited. ... ! ■
    
    ■ The defendants pleaded payment, with leave to give the special matters in evidence, and gave notice, that they would . ■ , r ,, . . • . , , . . , r give the following matters m evidence:—I hat the title of the plaintiff’s testator to-the said lands, was defective -and incumbered, at the timé of. the sale to. the defendant, and • * * continued and still is imperfect. That the defects in the title and incumbrances upon it, were concealed by the plaintiff’s testator, at the time of contracting, and when discovered, he-engaged to the purchaser, that he should be no loser for want of them, and that he would immediately have them supplied and removed, and that the purchaser at any rate, should be no loser, or at no loss for want of them ; on which engagements alone, the contract went into effect. That it was fully explained', and made- known to the plaintiff’s testator, that part of the lands purchased, was for a town plot, to be laid out in lots, and that a complete title was expected and indispensable, and that such a. one was promised, and indemnity against loss, for want of it stipulated. That the defendant, upon the faith of the engagements of the plaintiff’s testator, laid out the ground plot, of part of said lands, in a town, and made extensive and advantageous sales of great numbers of the lots at vendue, which sales were frustrated and defeated by the defendant’s not getting a clear title from the seller ; and not being able to give such an one to those to whom' he sold, they refused payment to him. That in consequence, of the title given by the seller being defective and incumbered, the whole object of the. purchase was defeated and .lost to the defendant, and a purchase, which otherwise would have been profitable, was rendered ruinously injurious. That very advantageous sales of other parts of the other lands purchased, were jeopardised and lost, from-the.title being defective and incumbered, which was neither supplied nor disincumbered, according to the sellers express stipulation, nor have these losses in .any way-been compensated by testator, under his express engagements so to do. That by the plaihtiff’s testator not complying.with his engagements to the defendant^ a purchase made for a specified' object, fully made known in bargaining, and which alone appreciated the land beyond ordinary land, has been reduced in the hands'of the purchaser to mere ordinary-land in value, attendant with heavy losses besides, for which, he expects a reasonable compensation to be made him, by the return of sp much of the money paid by him, as will make him whole for the losses he has sustained from the plaintiff’s not fulfilling his engagements, and leave to the plaintiff, á full and adequate price for the lands sold under stipulations, never complied with by seller.
    
      A decíaration by a vendor, evincing a dispoBition to defraud, is not aga!nst him in “J^sequent transaction
    Collateral made by the vendor, on the execution of articles, j^g^-fy the vendee against incumbrances, are the deed against those incumbrances, £”dtakgn vantage of in a suit for the purchase money, where they are not alleged as proofs of fraud. It follows, that any special damage sustained in consequence of the non-performance of such promises is not evidence in such suit*. , 11
    It is sufficient in Pennsylvania, to entitle a vendor to relief against the payment of purchase money, on the ground of existing incumbrances, that eviction may take place: it is not necessary that an-eviction al law should actually have taken place.
    It seems, that if the most part' of such incumbrances are discharged, the jury may allow for the residue,in the verdict. ■ \ . •
    Where land is decreed to one heir by order of the Orphans9 Court, the purchase money due the others, is a lien on the land; but a release by the children of one of these heirs who is dead, is binding in equity, and on every one but creditors, at law.
    A quit rent out of the land sold, against which there is a covenant of warranty in the deed, is not to be estimated and deducted from the purchase money ; but only the averages.
    A justice of the peace cannot do an official act, or exercise a judicial function, out of his proper district or county. Therefore, an acknowledgment of ,a deed' by a:feme covert, taken in Lancaster county, before a justice of the peace of York county,for lands in York county, is void.
    But if such feme covert afterwards joins as executor in a.suit, to recover the purchase money for the lands conveyed by such deed, the invalidity of the deed is no objection to the plaintiff's recovery ; for having affirmed the deed by the suit for the purchase money, she has made her election, and will be forever barred by the recovery, from claiming her dower.
    
      It appeared by the evideñce, that the bond in question was given in part of the consideration money, for the purchase of two tracts of land, the one situate in the county óf 7 . '_ • York, and the other, in the county of Lancaster. The sum to be given for.these two tracts was 110,000 dollars ;■ of this amount, 61,300 dollars, had been paid and the balance due upon the bond in controversy constituted the residue of the consideration money. The payment of this bond' was resisted, on the ground that the consideration for- which it was given had failed, in.as. much as, at the time-of the purchase* there were certain incumbrances on the property which affected the title to it. - - . - ■ ' ■
    The first evidence offered by the defendants, consisted of the articles of agreement, entered into between them and James Anderson, on the 4th of October,-181-3.—By these articles, James Anderson covenanted and’ agreed, “ that on or ■before the 15th of the same month of October, 1813, he would by good and sufficient deeds or .instruments of writing, duly made and executed according to law, sufficiently convey and confirm the premises to the said -Henry Share in fee that he should have full possession on the 1st of March, then next ensuing, and have the privilege of going on the land in the-•borough of Marietta, at any time, to lay off and, draft the same for building lots, so far as the lease with Snyder would admit.
    The defendants then proved from the records of the Orphans’ Court of Tork county, of the 3d June, 1800, and. of the Orphans’ Court of Lancaster county, of the 15th.-April, 1800, that this estate .was vested in James Anderson, on the terms of paying-or securing to'be-paid,, to the widow and children of his deceased father, their respective shares of this estate. The 'estate in Lancaster county, was' appraised at 3295/., and James Anderson the plaintiff’s testator, was bound to pay to the widow the interest of 1098/. 16s. 8d. yearly,' during, her life, and after her death, that sum of 10981. 16s. 8d., was to be distributed among the legal representatives of the father. He was also bound to pay to Margaret Anderson, Ruth, Thomas', Jane, John, Alary, William, Chalmer, Garland, Elizabeth and Eleanor. Anderson, the sum of 183/. Is. 1 Id., each. The estate in York county, was appraised .at 1/40/. 3s.; it was adjüged to James Anderson, and he was to pay to the. widow the interest of 580/. li., being, one third of the valuation money, annually, during her life; the principal to remain charged upon the land during her life, and on her death, to go to the legal representatives of his deceased father, and. that the other two-thirds were to he distributed among the-twelve children of the deceased, to each of them, 96/.. 13s. 6d.
    
    Testimony was given by Doctor Watson—that being sent for one morning he went to Mr. Andersons; Mr. Share and Mr. Child, came with the articles which were read over several times—that all seemed to be pleased with them, and they were duly executed. After their execution, and while Mr. Anderson was lying in bed, the witness whispered to him and .asked him if he knew what he had done, he answered he thought he did.. Witness told him, if he understood the articles, he had engaged to make a. clear title in a very short time, and inquired of him if he had got releases from his step mother, and brothers and sisters, who as the 'witness conceived had some claim upon the property.—He said he had not, but would send off immediately and get them. Witness mentioned, that he thought he knew the step mother as well as he, and that she would not' release.- Anderson said he would compel her to release. Witness then asked him, if he had ever informed Mr. Share that the releases had not been obtained; he said he had not; witness advised him by all means to inform him'while he was there, that if any thing should happen to prevent the releásés being obtained, they might arrange the- business. He answered he was very unwell and müéh exhausted, and wished the witness to do it. The witness then spoke to Mr. Share and mentioned, that Mr. Anderson had a stepmother, and some brothers and sisters, who had a claim and who .had, not yet released, but that-Mr. Anderson would send off immediately and get them. Mr. Anderson then spoke, out, and said yes,,Iwill send Abel off to-morrow or next day, and get them, and at any rate,, you shall be at no loss or no loser for want of them. With this, -Mr. Share appeared satisfied. Mr. Share then mentioned, to Mr. Anderson, that there were some other items in the articles he did not like. He said to Mr. Anderson,'you know for what I bought this 
      
      ■property ; that it was to sell again, and make as much out of if as 1 can, the times are now good, and the sooner I sell perhaps the better for me. He asked.Mr. Anderson, if he had any ... . . , , , , , objection to his- bringing a surveyor and laymg.out the landsv on the side of the river’ the twenty odd acres, into town lots, Mr. Anderson said he could not give him any grant as to that, that the property was out on lease, and that he could not gránt it till that lease was', out, but if hé- could get the tenants permission, he might come and begin when he pleased. Mr. Share said he could get that, and appeared satisfied. ' Henry Leibhart testified, that • he went to Mr- Anderson’s house to take the acknowledgment'of the. deed, that Mr. Share, finding' that the releases had-not been obtained, seemed to be a good deal dissatisfied.' That Mr. Anderson told, him he need not, be uneasy ' about that, for he would try and get the releases, and he should, suffer no loss on that account. Then the deeds were, executed; this conversation was just before the execution of the deeds. Mr. Share seemed to be satisfied with that promis'e. On his cross examination, the witness said,' that Mr. Share was present when the acknowledgment was taken; the deed was read to- Mr. Share, and after that he appeared to be satisfied; it was read first, before he signed it; the witness thought, but was not certain, Share was satisfied before the’deed was executed, and after the promise was made.- Witness said that the deed was réad shortly after he went there and then added, .1 can’t tell whether the-promise was made before’or after the reading of the deeds, I’ rathér think it was before, but cannot be certain. . , '
    Proof was also made of an endeavour on the part of f ames Anderson, to procure the releases. He sent á person' into Cumberland county, who testified that Thomas and' fohn Anderson were willing to releasej but that their iñother was unwilling; that fohn Anderson undertook- to persuade' her, and promised to come forward in a short time. The witness stated, that' Weakly’s'children were-under age, at the time ; that they were requested to.have guardians appointed. Thomas was appointed guardian for Garland, Lamb was married to fane Anderson, and was willing to release. There was'.another sister of fames Anderson, whom 'the witness did pot find at home. That he reported to Mr. Anderson, the result of his errand and told him, that fohn would be in shortly, that he had got no' release, but promises only, and that he did not recollect mentioning to Mr. Share, what he had done. Evidence was given also of the division of this property into lots ; of the sale of them; of offers made for purchases, which were defeated on account of the existence of the incumbránces; of .the property in Tork being within the manor of Springetsburg, and consequently subject to the payment óf a certain quit rent to the late proprietary; and lastly,- that ’the magistrate, who took the acknowledgment of the deed for the land in Tork county, was a justice of the peace for Tork county, and nevertheless took the acknowledgment of the deed in -Lancaster county. After all this evidence was given, the defendants produced their deeds for the property in question. ■
    ‘ On the part of the plaintiffs, evidence was given of a complete and iftoefeasible title to the lands in question, vested in James Anderson', the father of the plaintiff’s testator. It appeared from the records of the Orphans’. Court, of the county of Lancaster, ánd of that of the county of Tork, that James Anderson the father, died intestate, that this property was legally and duly appraised under the decree of the Orphans’ Court, and that the Court in each county, under the authority given them by the law, ordered the whole to James Anderson, the plaintiffs testator, being the eldest son of the deceased, he paying or securing to be paid to the other children of the intestate, their equal and proportionable part of the true value of such lands.. It appeared that James Anderson gave the security required—and by the proceedings of the Orphans’ Court, it appeared that the persons entitled to a share of the .estate of the intestate James Anderson, were his widow Margaret—James, the eldest son, Margaret, Ruth, Thomas, Jane, John, Mary, William, Chalmer, Garland,, Elizabeth and Eleanor, The plaintiff produced the releases of the widow Margaret Anderson, of Margaret and Jane Weakly, two of the four children of Nathaniel Weakly, who married Margaret Anderson, the said Nathaniel and Margaret being both ' deceased—of Thomas Williamson, who married Ruth Anderson,-now deceased—-of Thomas Anderson, of Sam\iel Lamb, and Jane his wife, who was Jane Anderson, of John Anderson, of William Ariderson, of Chalmer Anderson, 
      and of Garland Anderson. Mary and Elizabeth .Anderson, being dead, their rights vested in their- surviving brothers and sisters, and all the interest, vested in the parties to these releases, was relinquished and discharged. •
    These releases were all dated before the time at which the present suit was instituted, and consequently all claims were extinguished, except those of James and Harriet Weakly, who were entitled- to one fouith of a' tenth, and of Eleanor Anderson, who was entitled to a tenth.
    Mr. Gloninger proved that he drew the deeds for this property ; that Mr. Share called on him and furnished him with the materials and title deeds ; that the copies of the records of thé Orphans’ Court of Lancaster, and Tork, were wanting when Share first called, but that he afterwards produced them ; that he produced the articles of agreement or a copy. When the witness mentioned the releases being wanting, Mr. Share,said that the family were scattered, and he could not wait for them. Witness said he had to'do as well as he could from the materials* that he did not know whether he read the deeds, but he explained to him particularly the clauses of warranty, and that he was impressed with the idea that those clauses were introduced for want of the releases. Evidence was then given of an agreement between Henry Share, James Mehaffey, John Pedan, Matthias Bank, Jam.es Dujfey, and John Hams, of a settlement made between them, and of a division of the notes taken, for the lands sold by them.
    The Court were requested to give thé following matters in charge to thé Jury.
    
      1. If a purchaser buy land at six times the value, for an avowed object, made known to the seller at the time of purchase,- who agrees to convey, assure, and confirm the lands so purchased* to the buyer in fee simple,—and from defect of title and incumbrances upon it, the buyer is prevented from using it for the object bought; that matter proved on the plea of payment with leave &c. to a bona for the purchase money, is good matter of defalcation against the bond.
    2. That if the bargain, upon- which the bond is given, is unreasonable and unconscionable, the jury have a fight to defalk and take off so much of it, as would' make the bargain reasonable anrl just.
    e^^er fraud, or want of consideration, if proved, are a good defence against a bond on the plea of payment, w'ch leave to give the special matters in evidence, and that the seller giving the buyer a deed, does not prevent the defendant from using such defence.
    4. Nor is it necessary, when the defendant shews a manifest defect or failure of title in part to the land, to shew an eviction thereof, to entitle him to a defalcation against a bond for the purchase money.
    5. That when upon the execution of thé deed, and giving the bond the seller makes, a collateral promise to the buyer, that if he accepts of the deed, as it is, and acts upon it, he shall suffer no loss, or bé no loser thereby, and on the faith of that proihise he does go oh to appropriate the lands so purchased, to the specific object declared to the seller at the time of sale for which they were bought, and afterwards the object is defeated and rendered abortive, by the seller not removing the defects and incumbrances on the title, to which his promise related, and which at the time he made the promise, he engaged he would have immediately removed, the breach of such promise is a fair subject of defalcation against the bond, on the plea of payment with leave, &c.
    The Court charged the jury, as follows.
    It is contended, on the part of the defendants, that they have given direct and positive proof ’ of fraud on the part of the' grantor, in a studied concealment of the incumbrances, to which this property was subject, and that in consequence of the fraud arid studied concealment, the grantee was imposed upon, and induced thereby to make the purchase, and to lay out the lands into lots. And they rely_on the testimony of Doctor Watson and Henry Leibhart, as furnishing. the ' proof of these allegations. . Fraud is a mixed question of fact and law. It is for the jury .to decide on facts, ,and for the Court to decide on the inference to be drawn front those facts. Fraud vitiates every contract, and if it should appear to yóur entire satisfaction, that James Anderson took pains to conceal from the grantee, all knowledge of the incumbrances^ and that from hi's studied conceal-
      
      merit of these incumbrances, Share -was imposed upon, and persuaded to accept a deed, which he would not have taken ; it would be such a fraud, as would entitle the grantee to rescind\ the bargain, and to consider it of no force or effect.
    
    But fraud is not to be presumed; it must be made out by positive and direct testimony, or by the proof of such facts and circumstances, as are absolutely irrecóncileable with the principles of justice and morality. But it seems to me that the fact relied on as evidence of fraud, is absolutely inconsistent with the belief, that there was any studied concealment of the incumbrances—whether Henry Share was previously acquainted with their existence, does not appear, but it is shewn, that at the instance.- of the grantor, Doctor Watson did inform Mr. Share of them, and that it was the intention of Mr. Anderson to send off, and have them removed. Mr. Anderson then spoke out, and said he would send off the morrow or next day,.and get releases, and that at any rate, Mr. Share should not be a-loser for the want of them ; with this promise, Mr. Share appeared satisfied.
    
      Share then had notice of these incumbrances immediately after the execution of the articles of agreement, and he had notice of them specifically from the records, which he procured- for Mr. Gloninger, at the time the deeds were about to be executed. It appears that when Mr. Share found, that the releases were not obtained, he seemed to be a good deal dissatisfied ; Mr. Anderson told him he.need not. be uneasy about it, that he would try and get the releases,- and that Share should have no loss on that account. ■ With all this knowledge then, Mr. Share accepted the deeds for-the property in question. If Mr. Share meant to make any objections to the title, on account of these incumbrances, this was the time for making it. He was not obliged to take the deeds until the incumbrances were removed. But with a full knowledge of all the circumstances of the case^and all the difficulties which might attend it, he expressed himself satisfied, and accepted the deeds. ' -
    It becomes now necessary to attend to the operation of the deeds. The -points which most materially affect this case, are those which contain the clauses, of warranty.
    In these, the grantor covenants that Henry Share may peaceably and quietly enjoy the premises, free, clear, and discharged, or well and sufficiently saved, and kept harmless of and from ■ all former and other grants, dower, estate* charges, and incumbrances whatsoever, had, made, or done* by any person, whatsoever.
    There is also a covenant of warranty against the grantor, and his wife, and their, heirs, and against the heirs, and representatives of his father James Anderson,, and against all and every other person 'whatsoever, lawfully claiming-or to cl^im the premises or any part thereof. It is the opinion of the Court, that the agreement of the 4th October, 1813, to give -a good and sufficient title, was satisfied by the execution' and delivery of the deed.s, and their acceptance by Mr. Share. It will be proper to enquire also, into the effect'which these deeds may have upon the case, ás it relates .to the parol testimony adduced by.the defendants, viz. The testimony of Dr, Watson and ‘Henry Leibhart, offered and received before the proof of the .execution of any other deed than the articles of agreement. ■ ' '
    
      The competency of, the parol evidence could be maintained, after the production of the deeds, only on the ground of an allegation of fraud in the grantor, o.r on the principle, that the promise made by him was an independent engagement, and entirely distinct from that which was afterwards incorporated into the deeds. If you are of opinion that Anderson was guilty of, fraud in the matter already mentioned, in concealing the incumbrances, and imposing upon the grantee, and persuading him to enter into contract, then the testimony was properly received, and you zvill give it that weight to which it is entitled. -In any construction of this agreement, which is called an independent and collateral one, I do not perceive how it could be extendedfurther than a promise by Anderson to indemnify against the claim of his step mother, and brothers, and sisters. The grantee was to suffer no loss on that account ,” •and in the utmost latitude, it could not.be intended to make him hablé to- a greater extent than the amount of the incumbrances, which were then within the contemplation of the parties.'. Butin whatever point-of light this' agreement may be considered, it had in view the same subject matter, the same incumbrances; and the same extent of indemnification, which .were >provided for in the. deeds of the 12th of November, 1813. -If you-are of opinion, that there was no fraud in the transaction, there is an end made of all parol agreements, respecting the conveyance of this land, or any thing relating to it, by the execution of the deeds. Dr; Watson’s and Henry Leibftarfs testimonies were admitted for the purpose of proving a fraud, if. it could have been done. If it has not been proved, their testimony i$ to be alr together rejected. The rule is too reasonable and too .well settled, to be now disturbed, that when- an agreement is reduced to writing, all previous negotiations are resolved into the writing, as being the best evidence of the certáinty of the agreement. The acceptance of tjhe deed is an execution the- whole contract, and the rights and remedies of the parties, in relation to such contract; are tobe determined by such deed, and the original agreement .becpmes null and void. '
    It cannot be a safe, and salutary rule to allow a contract to rest partly- in writing and partly in parol. Whenever it is reduced to writing, that is to be considered as the evidence of the agreement, and every thing resting in parol becomes thereby extinguished or discharged. It is, says the Supreme Court of New York, (1 Johns*.Rep. 416,) a new doctrine, that there can be a warranty in writing, and a warranty by parol in the same contract. The matter then rests upon the .clauses of warranty contained in the deeds ; the incumbrances were-within the notice of'the parties at the time of its execution; have they provided against them by special covenant ? what is the construction to be put on these covenants, and what is the extent and nature of them. James Anderson having thp fee simple in the lands, subject to the lien of the claims of his' .mother, and brothers and sisters, covenants, and agrees that the grantee shall peaceably and quietly enjoy the premises,free, clear, and discharged; or well and sufficiently saved and kept hármless, of and from all former grants, charges, and incumbrances whatsoever, had, made or done by any persons whatsoever. It is the opinion of the.Court, that this provision in the deed respecting incumbrances, amounts to no more than a covenant to indemnify the grantee against all then existing charges, liens, or incumbrances upon the lands, and to the extent of those liens, charges, or incumbrances, and' no further. And that the grantor is not liable for any subsequént acts of the grantee, or for any losses which might accrue from any dispositions of the lands, grants, agreement or speculation, to which he might afterwards be a party. Under this view of the subject, it would be right to lay out óf the case, 
      
      all the testimony which has been given, respecting the laying _ out of this land into lots, the agreements andsettlements of the parties concerning it, the sales of those lots and any profit or loss accruing from the sales, or other dispositions of them,'. Isay all the evidence respecting these matters, is .to be rejected, and the case is to be considered as if no such evidence had been given, because in the correct decision of it, this evidence ought to have no weight. So, if there were no fraud or imposition in the case, we are to pay no attention to the real value of the lands,.sold to the amount of the purchase money, or, to the depression of the price, which afterwards took place, nor is it material to the grantor that he was made acquainted with the object for which the purchase was made, unless he was guilty of fraud, or studied concealment of some circumstance, unknown tó the purchaser, by which the object of the purchaser was. defeated. With these matters we have no' concern, wé are only to determine upon the contract, solemnly entered into between the parties, and upon the meaning and extent of that contract. A Court of justice cannot, and ought not to make bargains for parties, or to determine in the case of a purchase,. what one.party ought to give, and the other to take. Considering then this case as divested of fraud, it becomes .necessary to ascertain the amount of the incumbrances, with which this 'land was charged at the time of the suit brought, because the grantor can be liable, only for the amount of the incumbrances existing at the time, at which the suit upon the bond, was commenced. If he had then paid off or obtained a discharge of all, the incumbrances, he would be entitled to recover the whole amount due upon the bond', with the accruing interest; and the amount of incumbrances, then in existence, is all that he could be prevented from recovering. The plaintiffs have proved, that all the shares' and proportions oj' the stepmother . and brothers and sisters of the plaintiffs testator., are released and discharged, except the interest of fames -and Harriet Weakly, who were two of the four children of Margaret the sister of the testator, and were each entitled to a fourth of their mother’s share of the estate of the intestate, and except the interest of Eleanor Anderson, who was entitled to a tenth of the sum, at which the estate was appraised. It appears that this estate zvas included within the Manor of Springetsbury,. and is subject to- several years arrearages of quit 
      
      rent. Under a strict construction of the covenants in the deeds, warranting against all incumbrances, the arrearages oj auit rents would be included within the warranty. It is also ” ' , , .. contendea, that the widow oj the plaintijj s testator, has a pair claim of dower upon the estate conveyed, inasmuch as the ac-know/edgment oj' the deed for the land in Tork county, was made in Lancaster county, bejore a justice of the peace cf Tork county. The Act of Assembly, on this subjectdirects that all bargains, and sales, and deeds and conveyances of lands, tenements and her edit apnents may be recorded, but before the same shall be so recorded, the parties concerned shall procure the grantor, or bargainor named in every suóh deed, or else two or more of the witnesses, (who were present at the execution thereof) to come before one of the justice's of the peace of the proper county where the lands lie, who is empowered to take such acknozvledgment. The acknowledgment taken here is made in strict conformity, to the words of this Act of Assembly—it is made before, a justice of the peace of the proper county, where the lands lie, and I am not satisfied, that it is inconsistent with its spirit. The taking an acknowledgment of a deed, is hot local' in its nature, it is a mere personal trust- and confidences and I am not prepared to say, that this acknowledgment is illegal. But the wife whose acknowledgment is objected to, is now a widow, and capable in her own rights of becoming á party to a contrdct, or of surrendering up any right which 'may be vested in her. She is a party to this suit, she has never made a claim of dozoer, and it appears to me that by her acting as executrix, and becoming a party to this suit, she would be debarred of any claim of dower which she might otherwise have. It is contended on the part of the plaintiffs, that the deeds containing a .clause of indemnity against incumbrances, if any incumbrances exist, fhe remedy, is’ on the covenant; and it is no defence to a suit on the bond for the consideration money, &c.; and that the incumbrances form no defence until it be shewn that there has been an eviction of the land, by the party having a lien ; or that the money, has been paid by the defendants to the holders of the incumbrances, or in consequence of them, and to the extent of that payment, and no further. Upon a careful"consideration of the law upon this subject, I do not think an eviction necessary, nor that there should be an actual payment of the amount of the incumbrances. In Pennsylvania, the law is different in many respects from that which prevails in other States. In New Tork, the chancellor says, that “ if a person is-in the actual enjoyment of land, and no person asserts, or takes any measure to assert a hostile' claim, .he cannot be permitted, on suggestion of a defect or failure of title, to stop the payment of the purchase money. Can this Court proceed to try the validity of the outstanding claim, in the absence of the party in whom it is supposed 'to reside ? Or. must he be brought into Court, against his will, to assert or renounce a.title,.which he never asserted, and ,perhaps never thought of ? I apprehend, there is no such practice or doctrine in this country, and that a previous eviction or trial at law, is, as a general rule, indispensable. Perhaps an outstanding incumbrance, either admitted by the party, or shewn by the record, may form an exception, in cases of covenants against incumbrances.” .The purchaser then has a right to retain the amount of the incumbrances. You will ascertain what the amount of them is, and if there be no fraud ’ in the case, the plaintiffs are entitled to your verdict for the balance.
    During the trial, three bills of exception were taken by the defendants below, to the opinion of the Court, on points of evidence, ’ .
    1. The defendants offered evidence to prove the'solvency of the purchasers at- Henry Share’s sale of the lots laid out on the lands purchased, -which sale took place on the .11th December, 1813, and that the purchasers refused to pay, on account of the incumbrances and defect of title. The plaintiffs objected to this evidence, and the Court overruled it.
    2. The defendants offered to give in evidence, the records of several suits brought in the Common Pleas of Lancaster county, by Henry Share, against several of the purchasers of lots .mentioned in the vendue list, heretofore given in evidence, and that Share was uniformly defeated in those suits, in consequence of the distributive shares of the stepmother of Lames Anderson and his brothers and sisters, .in the valuation money of the estate not having been released. T© which the plaintiffs objected, and the Court overruled it'.
    3. The defendants,' in order to shéw that the concealment by James Anderson fromHenry Share, of the incumbrances of his step mother, brothers and sisters, was fraudulent, offered to prove, that a short time before the date of the articles of agreement, Anderson offered to sell the property before mentioned to-the witness, who told him that he had' understood there were incumbrances on it, which had never been discharged, but at the same time informed Anderson, he did not believe what he heard, as he had before bought part of the same land, and got a deed from him, which shewed that the land was absolutely conveyed by his father to him; Anderson said, that those who said there were incumbrances upon the land,' knew no better; that there were no incumbrances upon it: which testimony was objected to by the.cqun? sel of the defendant, and the objection sustained by theCourt.
    The jury found a verdict for the plaintiff, and judgment -was rendered accordingly.
    The plaintiffs in error in this Court assigned the following errors. .
    1. The Court erred, in not answering the questions, in their charge, propounded to them by the counsel for the defendant. „
    2. They also erred, in delivering it as their opinion to the jury, that a justice of the peace for the county of York, had authority to take the acknowledgment of a feme covert to a .deed, in the county of Lancaster, conveying lands situate in the county of York : and that even if that were not the law, the feme covert, as. executrix of her husband’s will, being one of the plaintiffs in this suit, would have, her right to dower extinguished.
    3. Thev .also erred, in overruling the testimony offered by the defendants, and for the rejection df which their counsel have taken three bills of exception.
    4. They also erred, in instructing the jury, that notwithstanding Henry Share might have been induced to adhere to the articles of agreement, and accepted the deed, in consequence of an express promise made by James Anderson, that the releáses should be obtained, and if they were not; that he (Share) should sustain no loss on that account, yet; th'at this promise was merged in the acceptance of the deed, and if it were not, the measure of damages would be, not the actual loss sustained in consequence of its breach, but merely the amount of incumbrances unpaid at the time of the institution of the suit.
    
      5. They also erred, in stating it as their opinion to the jury, that the agreement of the 4th October, 1813, to give a sufficient title, was satisfied by the execution and delivery of the deed, and its acceptance by Mr. Share.
    
    6. They also erred, in instructing the jury, that they should altogether disregard the testimony of Dr. Watson and Henry 'Leibhart, unless they were of opinion that Anderson was guilty of fraud.
    . 7. They also erred, in instructing the jury, that it would be right to lay out of the case all the testimony which had been given, respecting the laying-out Of this land into lots, the agreement and settlement of the-parties concerning it, the sales of those lots, and any profit or loss accruing from the sales or other dispositions j also, that if there was no fraud in the case, they should pay no attention to the real value of the lands sold, to the amount of the purchase money, or to the depression of the price which afterwards took place, nor is it material to the grantor, that he was made acquainted with the object for which the purchase was made, unless he were guilty of fraud, See.
    
      Buchanan and Hopkins, for the plaintiffs in error.
    
      Jenkins and Rogers, contra.
    Tjxghman, C. J., took no part in the decision,- having been absent during the. argument. . ,
   The opinion of the Court was delivered by

Gibson JV

In the Court below, the defence was put on a supposed -fraud of James Anderson, the plaintiff’s testator, in procuring Henry- Share, one of the defendants and the principal in the transaction, to purchase the land for. which the bond was given: on-the breach of a collateral agreement by Anderson to procure, within a specified period, certain incumbrances on the property to be extinguished: on the existence of some, of those incumbrances, as still outstanding! and on a defective acknowledgment of the deed of convey. .anee by Anderson's wife, who is now an executrix of his will, and a plaintiff in the cause. Under some of these heads, may every principle be ranged, which the Court was called on to decide.

As to the first, the defendants had the benefit of their allegation to the extent of its value as supported by the evidence. .The jury were instructed, that’ if Anderson the vendor. took pains to conceal the incumbrances from Share, and thus induced him to accept a deed which hi; would not otherwise have done, it was such a fraud as entitled-him ..to rescind the contract altogether;'but the Judge at the same time expressed an opinion that the' defendants had failed in their proof; and whether in this he were right or wrong is not for us to enquire. But an exception was taken to the’rejecr tion of evidence to prove that, a short time previous'to.the date of the articles, Anderson had offered to sell the property-to the witness, who observed, he understood there were incumbranc^s on it, but that he did not believe it; and'that Anderson replied that they, who said so, knew no better, for there were none. Now how this declaration, even granting, for the sake of the_ argument, that it evince'd a disposition,' to cheat the person to whom it was made, could be called in aid of evidence of fraud in a subsequent and distinct transaction not then even in contemplation, is what I cannot comprehend. In this part .of the case therefore, I discover no error: ,

Under the second, head, a breach of the parol agreement was insisted on, not as failure of" consideration, of the bond, but as special damage collateral to the consideration ; which, therefore could operate, if at all, only as a set off. It is unnecessary to decide whether, under the pleadings, a distinct substantive cause of action could be urged as a set off,' as it is clear the parol promise could, under the circumstances of the case, have no operation in any shape. It was not pretended that this part of the defence,, was connected with the allegation of fraud; but it was urged on the ground of the abstract effect of the promise itself, which, from its nature, carries with it an assertion of notice, and precludes the idea of Share having been unapprised of the existence of the incumbí anees at the execution of the deed, or even at the date of the articles. Dr. Watson testified* that immediately after the articles were signed, he informed Share, at the request of Anderson, that there were liens ; on which Anderson said he would procure releases of them, and that at all events Share should be no loser for want of them : and Leibhart swore, that immediately before the execution of the conveyance made pursuant to the articles, Share expressed dissatisfaction, because the releases had not been obtained ; on which. Anderson again told him not to be uneasy, for he should suffer no loss on that account, and Share being satisfied, the conveyance was then executed. This was all the evidence of the promise relied on. In Pennsylvania we have, unquestionably gone further in admitting the declarations of parties, made at the execution.of a conveyance, than the decisions of any Chancellor would warrant; but this departure from the chancery rules of evidence, has been regretted by some of the soundest lawyers of the State, and every days experience proves its want of policy. In giving effect, therefore, to parol evidence of the intention of the parties to a written contract, I will never consent to go a jot beyond the adjudged cases, and in truth, I would much rather recede than advance. Here, however, we have a very different case ; for the attempt is not to control the written agreement, but to set up a parol promise, independent of it, as the subject of a substantive and distinct remedy. Now there is no wiser rule, and certainly none better established, than that a contract shall not rest partly in writing and partly in parol. But further, the execution of a deed, being the solemn and deliberate creation of the evidence of the contract, is the consummation of all preparatory negociations and stipulations, even where there are articles of agreement : and this rule extends so far, that although there may be collateral covenants, not executed by delivery and acceptance of a deed, the law raises a presumption to the contrary, which- can be rebutted only by a manifest inconsistency between the provisions of the deed and those of the articles. But here the deed contained a covenant of warranty against the very incumbrances that were the subject of the promises, and it would therefore be impossible, even if there could be such a thing as a collateral parol promise, to say that it was not merged in the deed; for if it were not, the purchaser might proceed at the same time on the promise and on the covenant: and, to say that he would be bound to elect'his remedy, or that he could recover only one. satisfaction, admits the identity of the subject matter of the Written and of the parol contract, and, in that view, is an argument in favour of the latter having, merged in the former. The jury, therefore, were rightly directed, that unless the acceptance of the conveyance were, procured by deceit, the declaration of the vendor ought to have no operation.

Under this head, also, may be ranked two bills of exceptions to the opinion of the Court, rejecting evidence of the solvency of persons, to whom Share had sold certain portions of the land; and that they had defeated him by setting up these liens as a defence to suits brought for the purchase money. The evidence was offered to shew the nature and extent of the special damage suffered from the breach of the promise ; and its competency, therefore, depended on whether the promise itself created any distinct responsibility that could have an effect on the event of the cause. I am of opinion it was properly excluded.

Then as to the third head. The effect of incumbrances as shewing failure of consideration or a defect in the title, is certainly different in Pennsylvania from what it is in-England where an eviction at law-is an indispensible ingredient of a claim for relief against payment of the purchase money. Here it is sufficient that eviction may take place. How far then had the incumbrances in the present, case been actually discharged, and were there any still outstanding, which the Court did not direct the jury to allow ? The compensation decreed by the Orphans’ Court, in lieu of the interest which the step mother and the twelve brothers and sisters of the vendor originally had in the estate, and which was divested by the decree confirming the estate in him, was a lien on the land; but all their respective shares had incontestably been discharged, except the share of one of the sisters, which, under the direction of the Court, was allowed in the verdict; and also the share of another sister, only half of which was al lowed. The last mentioned sister had died leaving four children; two of whom had not released, and their part of their mother’s share was consequently allowed ; but the other, two on coming of age had executed releases, the validity of which is denied, on the ground that the interest of the mother, having been turned into personalty by the decree of the Orphans’ Court, could be released only by her personal representative, and not by her heirs, as these had no descendible interest m the money decreed to her. Such releases, I admit, are not valid at law ; but they are undoubtedly valid in equity, and therefore good here, especially as the defendant sets up-an equitable defence. . If the money had been actually paid to the children to whom it was ultimately to go, would not chan-eery restrain an executor or administrator of the mother from prosecuting an action for it at law ? Payment to the children would be good against every one but creditors, and here it does not appear that there were any; for we must intend the Judge said the releases were good only under the circumstances of the case, and as the evidence has not been brought before us by a bill of exceptions, we cannot, say this was error. But these incumbrances were not, as seems to have been taken for granted at the trial, dependant for their, effect. on the covenant of warranty which was specially intended to protect against them ; for this equitable defence rests not on the breach of a covenant, but on failure of consideration, and might have been equally urged if the conveyance had contained no Warranty at all. There is however another incumbrance on which the warranty has a direct operation.' The land lies within the manor of Springetsbury, and is subject to a quit rent to the heirs of the late proprietaries j and of these facts I will intend that the vendee was fully apprised, as the nature of the title must have led him to a knowledge of. the first, and the reservation of quitrrents in the proprietary manors, being not only a matter of public notoriety, but alsp recognised in the act which divested the right of the Penn family in their other lands, is to be considered as notice of the second. Under these circumstances it might admit of a doubt, whether a purchaser, even without a covenant against the quit rent, could retain any part of the purchase money. Where however there is notice of an incumbrance which is contingent, and' the vendor covenants generally against incumbrances, the vendee will be considered as-having chosen -his remedy, and will not be permitted to retain. Vane v. Lord Barnard, Gilb. Eq. Rep. 6. Here if, there had been no covenant, and the vendor had been ignorant of the existence of a quitrent, the jury might have deducted its estimated value from the amount of their verdict: but the-very circumstance of exacting a covenant against a' known Incumbrance which the vendee may extinguish, is inconsistent with an intention that more should be retained than what actually affected the land by being then due. It was contended that the whole value of the quit rent should have been estimated and deducted, but the Court directed the jury to allow only arrearages due at the time of the contract; and these, as being a present charge, were properly a subject of defence, on the same ground. that- the liens created by the proceedings in the Orphans’ Court were allowed; but the vendee could not retain to meet charges accruing after-wards.

Lastly, as to the defect in the title. The acknowledgment of the conveyance in Lancaster county, although before a justice of the peace of Tork county in which the lands lie,' was undoubtedly void. The taking of the separate examination of a feme covert is a judicial act, and, therefore, as local in its nature as any other within the compass of a justice’s official duty, who can do no act nor exercise any judicial function out of his proper district or county. If jurisdiction.' were given to justices of the peace for considerations that relate only to their office or persons, it is not easy to discover any thing like a reason for the Legislature having attached any local qualification to it; for the magistrates of one county possess, in contemplation of law, as competent a share of talents and integrity as those of another; and therefore this official trust might, as to that, have been as well confided indiscriminately to all the justices in the State, as to those of the county where the lands lie. But although the dower of the vendor’s widow was not barred by the acknowledgment of the conveyance, yet she prosecutes this suit in direct opposition to her right, and has therefore precluded herself from urging it hereafter. A party in her situation will never be permitted to affirm an act in part, and disaffirm it in part; but shall be put to his election to confirm it altogether or abandon it altogether. This principle, which is universal, and said to prevail in the laws of every country, is applicable to all interests, whether of femes covert or infants; whether immediate, remote or contingent; of value or of no value; and as well to deeds as to wills. It is this principle—that none shall claim in repugnant rights,, and that he who would take the benefit shall not dispute the title,—which prevents a tenant from, setting up title against his landlord. Whether the widow had a beneficial interest under the will is immaterial: her having joined in ,a suit to recover the, price of a title, which was sold as a good one, was a determination of her election, which shall forever estop her from disputing the validity of the title, to which, after every legal disability was removed, she has thus become a party. The error in the charge of the Court respecting the acknowledgment of the deed, therefore, was one that did not prejudice the 'defendants ; as the vendor’s widow, who is an executrix of his will and one of the plaintiffs in the suit, ratified the sale and cured the defect in the title. The judgment is affirmed.

Judgment affirmed.  