
    [Philadelphia, January 8, 1838.]
    BROWN and Another against BRODHEAD.
    IN ERROR.
    The condition of a bond, reciting that the obligor had sold a certain tract of land to the obligee and that there were certain incumbrances on the land, existing by judgment and otherwise, declared that the bond should be void, if the obligor, his heirs, executors, &c., should, at all times' thereafter, save, indemnify, and keep harmless, the obligee, his heirs, &e., against all judgments, liens, claims, demands, suits, actions, charges, dues, troubles, and expenses, whatsoever, by reason of any mortgages, judgments, arrearages of purchase money, &c.: in debt on the bond against the executors of the obligor, it was Add, that it was not a sufficient breach, that the obligor had not paid the arrears of purchase money, due to the commonwealth, without showing that the commonwealth had instituted some proceeding against the land, to obtain payment, or that the obligee had paid the money to the commonwealth; although it was alleged, that the defendant had promised to pay; and that in consequence of a promise to pay the amount, the plaintiff had released a purchaser under him, from a lien for the money due to the commonwealth.
    This was a writ of error to the Court of Common Pleas of *Northampton county, to remove the record of an action of debt, brought by Michael Brown and Solomon TIeller, executors of the will of John Brown, deceased, against Brodhead, executor of the will of Grarret Brodhead, deceased.
    The action in the Court below, was debt in the detinet, brought to recover the sum of ¿61200, due on a bond of the defendant’s 'testator, &c., of which the following is a copy:
    “Know all men by these presents, that we Grarret Brodhead, David Dills, and David Dills the younger, all of Lower Smith-field township, in the county of Northampton, and commonwealth of Pennsylvania, are held and firmly bound unto John Brown of the same place, in twelve hundred pounds, of lawful money of Pennsylvania, in current gold or silver coin, to be paid to the said John Brown, his executors, administrators, and assigns; to which payment well and truly to be made, we do bind ourselves, our heirs, executors and administrators, and every of them, jointly and severally, firmly by these presents. Sealed with our seals, dated the eighth day of May, in the year of our Lord one thousand seven hundred and ninety.
    Whereas the above bounden Grarret Brodhead and Jane his wife, by indenture bearing even date herewith, have granted, bargained and sold unto the above mentioned John Brown, his heirs and assigns, a certain tract of land, situate in Lower Smithfield township aforesaid; bounded by land of Jacob Stroud, Daniel Brodhead, and other land of the said Grarret Brodhead; containing four hundred and nineteen .acres and three-quarters of an acre, with the usual allowance; as by the said indenture reference being thereunto had will more fully appear; and whereas, there are certain incumbrances upon the land, existing by judgment and otherwise: therefore, for the better and more perfect securing the said John Brown in the peaceable, entire, and quiet possession of the same land y
    
    The condition of the above obligation is such, that if the above bounden Grarret Brodhead, his heirs, executors, or administrators, or any of them, shall and will, well and truly, at all times hereafter, save, indemnify, and keep harmless, the said John Brown, his heirs and assigns, against all and all manner of judgments, liens, claims, demands, suits, actions, charges, dues, troubles, and expenses, whatsoever, which have arisen or accrued by reason of any mortgages, judgments, arrearages of purchase-money, principal or interest, due or to become due, from the land herein before mentioned, granted by the said Garret Brodhead and his wife to the said Brown, or which have arisen or accrued, in any lawful manner whatever affecting the said premises, or which the said John Brown may hereafter sustain, suffer, or be put to, by reason thereof, then this ^obligation to be void, otherwise, to be and remain in full force and virtue.” •
    The plaintiffs declared upon this bond; and in their declaration set forth the recital and condition of the bond, and assigned breaches negativing the words of the condition.
    To this declaration the defendant, after craving oyer of the condition, pleaded “ non damnificatus.”
    
    The plaintiffs replied to this plea as follows:
    “ And the said Michael Brown and Solomon Heller, surviving executors as aforesaid of the said John Brown, deceased, as to the plea of the said Richard Brodhead, executor, &c. of Garret Brodhead, deceased, by him above pleaded, say, that they the said plaintiffs by reason of any thing by the said defendant in that plea alleged, ought not to be barred from having and maintaining their aforesaid action thereof, against him the said defendant, because they say that at and before the day of the sealing and delivery of the said writing obligatory by him the said Garret Broadhead aforesaid and at and before the sealing and delivery of the said indenture from Garret Brodhead and Jane his wife, to the said John Brown, bearing even date with the said writing obligatory and recited therein, to wit, on the 1st day of May, a. d. 1790, at the county aforesaid, there was due and unpaid to the Commonwealth of Pennsylvania the sum of $138 76, it being the purchase-money due to the said commonwealth for three hundred and thirty-five acres and one hundred and twenty-six perches of land, part and parcel of the said tract of land in the said writing obligatory mentioned, containing in the whole four hundred and nineteen acres, and.which was granted and conveyed by the said Garret Brodhead and Jane his wife, to the said John Brown, now deceased as aforesaid; together also with interest upon the said sum of $138 76, to be computed according to the then existing laws of the said commonwealth, from the 5th day of April, 1737, first deducting therefrom the sum of ¿£80, paid by the said Garret Brodhead on the 10th day of February, a. d. 1790, and also the further sum of ¿£45, 12s. 9d., paid by the said Garret to the said commonwealth, on the eleventh day of March in the year last aforesaid.
    
      And the said plaintiffs further say, that the balance of the said purchase money, with the interest due thereon as aforesaid, was a lien and encumbrance on the said part of the said tract of land so conveyed by the said Garret Brodhead and wife, to the said John Brown, as aforesaid, at and before the time of the said conveyance, and that the same continued to be such lien and incumbrance thereon, from thence until the day before the suing out of the original writ in this case.
    And the said plaintiffs further say, that after the said sale and of the said tract of four hundred and nineteen acres *land by the said Garret Brodhead and wife to the said John Brown, after the execution of the said writing obligatory, and while the said balance of purchase money, principal and interest, was a lien upon the said premises, and due to the said commonwealth as aforesaid, the said John Brown in his lifetime, to wit, on the 25th of March, 1811, at the county aforesaid, entered into a written article of agreement with one Jacob Brown, (proferí then made,) wherein and whereby the said John Brown for and in consideration of the sum of $7,000 to be paid him the said John in the manner and form thereinafter mentioned, bargained and sold unto the said Jacob Brown, his heirs and assigns, (amongst other things) all that plantation or tract of land on which they (the said John and Jacob) then lived, adjoining lands of Adam Smith, &c. containing four hundred acres, more or less, with the appurtenances, (which said last mentioned tract includes the whole of the said tract of three hundred and thirty-five acres, one hundred and twenty-six perches, upon which the purchase money was due to the commonwealth as aforesaid, and also the entire tract conveyed by Garret Brodhead and wife to the said John Brown, by the said indenture recited in. the writing obligatory, on which this suit is brought.) — And the said Jacob Brown by the said articles of agreement agreed and promised' to pay $1000 of the said consideration money on or before the 1st day of May then next, and $300 on the first of May in each and every year thereafter, until the whole of the said purchase money should be paid; and the said John Brown further agreed and engaged to execute and deliver to the said Jacob Brown a good deed for the said plantation or tract of land, and that as soon as the one-half of the said purchase money should be paid; and if it should so happen that the said John Brown should die before he made the said deed, he thereby authorized and required hjs executors or administrators to make the said Jacob Brown a deed for the same — the said Jacob to give his bonds for the residue, and a mortgage if required.
    And the said plaintiffs further say, that the said John Brown died on the -20th of December, 1827, and before he had made and executed a deed and conveyance of the said tract of land to the said Jacob Brown, according to the tenor and effect of the said article of agreement, and that at the time of his decease there was a large sum of money, to wit, the sum of $2,400 unpaid by him the said Jacob Brown to him the'said John Brown, for the consideration of the said tract of land in the said agreement mentioned: That the said plaintiffs, executors of the said John Brown, deceased, aforesaid, on the 10th day of June, A. u. 1830, duly made and executed a deed according to law, for the said premises, which on the same day they tendered to the said Jacob Brown; and the said Jacob afterwards, to wit, on the day and year last aforesaid, refused to receive and accept the said deed so tendered to him as aforesaid, but claimed and demanded, that the aforesaid balance of purchase-money, *principal and interest due to the commonwealth as aforesaid, should be , first fully paid and satisfied by the said plaintiffs, and that the said lands should be first entirely discharged from the lien thereof; and at the time of the tender of the said deed as aforesaid, the said plaintiffs demanded from the said Jacob the payment of the consideration money then due by him to the estate of the said John Brown, deceased, on his purchase of the said premises as aforesaid; and that the said Jacob then and there refused to pay the same until the said lands should be first discharged of the said lien and incumbrance due to the commonwealth as aforesaid. And the said plaintiffs further say, that afterwards, to wit on the day and year last aforesaid, the said defendant had notice of the said refusal of the said Jacob Brown to receive the said deed as aforesaid, or. to pay the said purchase-money due by him as aforesaid, and also of the said claim and demand by the said Jacob, that the balance of purchase-money due to the commonwealth as aforesaid, should be fully paid and satisfied by the said plaintiff as aforesaid; that the said defendant thereupon admitted and agreed that he, as executor as aforesaid, was then and there liable upon the writing obligatory aforesaid, by reason of the same claim and demand of the said Jacob as aforesaid, to pay the amount of the purchase-money, principal and interest, due to the said commonwealth upon the said premises, and promised and agreed that he would pay the same, and discharge the lands from the lien thereof.
    And the said plaintiffs further say, that afterwards, to wit, on the 10th day of June, A. D. 1829, at the county aforesaid, it was agreed by and between them the said plaintiffs and the said Jacob Brown, by and with the consent of the said defendant, that the purchase-money, principal and interest, due to the commonwealth as aforesaid, amounting on that day to a large sum, to wit, the sum of $828 23, should be left by the said plaintiffs in the hands of the said Jacob Brown, out of the balance, of purchase-money due by him the said Jacob to the said plaintiffs on the said land as aforesaid; and that the said Jacob should at that time permit the same to remain a lien upon the said premises, and that thereafter he should pay the same to the said commonwealth, when demand thereof should be made from him the said Jacob, or from the said lands; that the said defendant having notice thereof, and having consented thereto as aforesaid on the day and year last aforesaid, promised and agreed to pay to the said plaintiffs the said sum of $828 23, the amount due to the commonwealth as aforesaid, and to be so left in the hands of the said Jacpb as aforesaid, the same to be paid by the said defendant in discharge of so much of the writing obligatory above declared on, which has relation thereto; that in pursuance of the said agreement between the plaintiffs and the said Jacob Brown, and the consent of the said defendant thereto, the said plaintiffs did, to wit, on the day and year last aforesaid receive from the said Jac°h Brown the balance of *purchase-money due by him the said land, first deducting therefrom the said sum of $828 23, the amount due to the commonwealth, which was left in the hands of the said Jacob Brown as aforesaid ; and the said plaintiffs did then and there execute and deliver a deed to the said Jacob for the said premises, and did release and discharge the said Jacob from all further liability to the estate of the said John Brown, deceased, for, or on account of the said purchase-money of the said land as aforesaid ; that the said defendant, with full knowledge of the premises as aforesaid, and in pursuance of his consent and agreement thereto as aforesaid, and for the purpose of paying the amount so due upon the writing obligatory as aforesaid, proceeded on the day and year last aforesaid, and did collect from the other heirs and legal representatives of the said Grarret Brodhead deceased, into whose hands, together with the hands of the said Richard, the assets of the said deceased has come, their several and respective shares and purparts of .the said sum of $828 23, to be by him so paid and applied in discharge of the said writing obligatory as aforesaid ; that the said defendant having collected the same as aforesaid, neglected and refused to pay the same to the said plaintiffs in discharge of the said writing obligatory as aforesaid, but paid and caused the same to be paid to the said Jacob Brown, who had no right, title, or authority to receive the same, and took from the said Jacob an indemnity for each of the heirs and legal representatives of the said Grarret Brodhead, deceased, according to the amount of their payments respectively; and this although the said- defendant then and there well knew that the said purchase-money due the commonwealth as aforesaid, had been before that time paid to the said Jacob out of the purchase-money due by him to the estate of the said John Brown, deceased, as aforesaid ; and thereby the said plaintiffs say they are damnified to the amount of the said purchase-money, principal and interest, due to the commonwealth as aforesaid, to wit, the sum of $828 23: and this the said plaintiffs are hereby ready to verify.
    And for assigning a further breach of the said conditions of the said writing obligatory and for setting forth a further damnification, according to the form of the statute in such case made and provided, the said plaintiffs further say, that at and before the making of the said writing obligatory, and at and before the sealing and delivery of the said indenture of the said Garret Brodhead and Jane his wife, unto the said John Brown, for the said tract of land containing four hundred and nineteen acres and three-fourths of an acre, with the usual allowance, to wit, on the 1st day of May, A. D. 1790, at the county aforesaid, there was due and unpaid to the commonwealth of Pennsylvania for the purchase-money of three hundred and thirty-five acres and one hundred and twenty-six perches, part and parcel of the said tract of land, the sum of $138 76, together with the interest thereon, to be computed according to then existing laws of this commonwealth, from the fifth day of April, A. D. 1737, first deducting *therefrom the sum of ¿£30 paid by the said Garret Brodhead to the said commonwealth on the 10th day of February, A. D. 1790, and also the further sum of ¿£45 12s. 9d. paid by the said Garret as aforesaid, on the 11th day of March, in the year last aforesaid, which said arrearages of purchase-money, principal and interest, were on the day first aforesaid, and from thence hitherto have continued to be a lien upon' the said last mentioned premises; that the said John Brown in his life-time, to wit, on the 25th day of March, A. D. 1811, at the county aforesaid, entered into a written article of agreement with one Jacob Brown, which said article of agreement is sealed with the seals of the said' John Brown and Jacob Brown, and is now to the Court here shown, the date whereof is the day and year last aforesaid, whereby the said John Brown, for and in consideration of the sum of $7000, to be paid to him the said John by the said Jacob, in the form and manner thereinafter mentioned, bargained and sold unto the said Jacob Brown, his heirs and assigns, amongst other things, all the said tract of land granted and conveyed by the said Garret Brodhead and wife to him the said John Brown as aforesaid; that at the time of the death of the said John Brown, to wit, on the 20th day of December, A. D. 1827, there was a large sum of money, to wit, the sum of $2400 due and unpaid by him the said Jacob Brown to the said John Brown for the consideration of the said tract of land in the said agreement mentioned; that afterwards, to wit, at the August term, a. D. 1828, of the Court of Common Pleas of the county of Northampton aforesaid, the said plaintiffs, Michael Brown and Solomon Heller, executors, &c., of the said John Brown, deceased, instituted in the said court an action of debt in the detinet, against the said Jacob Brown for the recovery of the purchase-money of the said premises then due and unpaid by the said Jacob Brown, in the said article of agreement as aforesaid; that the said Jacob Brown, by his counsel, Joel Jones, Esq., appeared to the said suit, and made defence thereto, the said Jacob alleging that he would not pay the money so due by him as aforesaid, because he said' that the arrearages of purchase-money, principal and interest, due to the commonwealth as aforesaid, were a lien upon the said land, and that he had not and could not receive a good deed therefor until the said lien was removed. Whereupon the said plaintiffs, not being able to gainsay the justice and legality of the said defence, afterwards, to wit, on the 10th day of June, A. D. 1829, allowed the same, and settled with the said Jacob, and permitted him to retain out of the purchase-money so dim to the estate of the said John Brown, deceased, as aforesaid, the sum of $828 23, the amount due on the last-mentioned day to the commonwealth of Pennsylvania for arrearages of purchase-money, principal and interest, on the said land as aforesaid; that the said defendant, on the day and year last aforesaid, had notice of the premises, and then and there agreed that the said purchase-money, principal and interest, due to the commonwealth *as aforesaid, to wit, the sum of $828 23, should be paid to the said Jacob Brown, and that he the said Jacob, together with the lands, should remain responsible for the payment of the same to the commonwealth. And thereby the said plaintiffs say that they are damnified to the amount of the said sum of $828 23, the purchase-money, principal and interest aforesaid. And this the said plaintiffs are ready to verify.”
    To this replication, the defendant rejoined as follows:
    
      “ And the said Richard Brodhead, protesting that the several matters in the replication of the plaintiffs above alleged, are not sufficient in law for the plaintiffs, to have or maintain their action aforesaid against him, and that they do not show that the said John Brown in his life-time, or the heirs of the said John Brown since his decease, or that the said Jacob Brown, assignee of the said land of the said John Brown, were or have been in any manner damnified for or by reason of the said lien of the commonwealth, in the same replication mentioned;
    And protesting also, that the said John Brown and the said Jacob Brown, assignee as aforesaid, and the heirs of the said John Brown, and every of them, have at all times since the exeeution of the said writing obligatory, to wit, since the 8th day of May, 1790, peaceably, entirely and quietly enjoyed the possession of the said tract of land in the said writing obligatory and in the said replication mentioned, and that they have not been in any manner let or hindered in the possession or enjoyment thereof;
    And protesting also, that none of the said judgments, liens, claims, demands, charges, dues, arrearages of purchase-money, or the principal, or the interest, due for the said land, or other incumbrance whatsoever mentioned in or intended by the said writing obligatory upon which this action is brought, have been enforced by suit, action or otherwise, against the said John Brown, his heirs, executors or assigns, or any of them, so as to harm, damnify, or cause any trouble or expense to the said John Brown, his heirs, executors or assigns, or either of them;
    And protesting also, that the said Garret Brodhead in his lifetime was not, and his executors since his decease were not, and are not in law bound to pay, satisfy or discharge the said lien for purchase-money in the plaintiff’s replication mentioned, but only to indemnify and keep harmless the said John Brown, his heirs and assigns, from time to time and all times when the same shall be demanded or enforced by suit, action, or otherwise, so as to damnify the said John Brown, his heirs or assigns, or disturb them or some of them in the peaceable, entire and quiet possession of the said land;
    And protesting further, that the right to sue upon the said writing obligatory for any cause of action which may be pretended or *alleged to have accrued by reason of any breach of the said writing not to the said executors of the said John Brown, but to the heirs or to the assigns of the said John Brown, tenants of the said land;
    And protesting also, that he the said Richard Brodhead, executor as aforesaid, did not promise nor make any contract, nor did he consent or agree, nor was he in any way privy to any contract, understanding or arrangement relative to the said purchase-money or otherwise, with the said plaintiffs in manner and form as they in their replications have alleged :
    And protesting also, that the right to sue upon any such pretended contract or promise of him the said Richard Brodhead with them, belongs not to the said plaintiffs as the executors of the said John Brown, nor is he the said Richard bound in law to answer to them in this action against him upon the said bond of the said Garret Brodhead, for any breach of such supposed contract pretended by the said plaintiffs as aforesaid;
    Nevertheless, for answer to the said pretended breaches which the said plaintiffs above in their replication have alleged, he says that the said Jacob Brown, assignee of the said land as aforesaid, is one of the sons and heirs at law of the said John Brown, deceased ; that after the execution and delivery of the said articles of agreement between the said John Brown and the said Jacob Brown, wherein and whereby the said John Brown bargained and sold unto the said Jacob Brown the said tract and plantation of land containing four hundred acres, in the said replication mentioned, the said John Brown made and published his last will and testament, and made and appointed executors, to wit, the said Michael Brown and Solomon Heller, and one Daniel Brown, now deceased, and afterwards, on the 8th day of December, A. D. 1827, died, to wit, at the county aforesaid; and after the decease of the said John Brown, to wit, on the 5th day of July, a. d. 1828, a controversy arose between the said Jacob Brown and the said Michael Brown and Solomon Heller, executors of the said John Brown, relative to the payment of certain, to wit, of five several bonds amounting to a large sum, to wit, the sum of $1500, part of the consideration of the said land as aforesaid, and the residue of the sum to be paid therefor: and thereupon, to wit, on the same day and year last aforesaid, the said executors commenced an action against the said Jacob Brown in the Court of Common Pleas of the county of Northampton aforesaid, to wit, at the term of August, A. D. 1828, for the recovery of the said money in the said bonds mentioned, parcel of the consideration of the said land, to which said action the said Jacob Brown pleaded payment, and had the leave of the Court to give special matters of defence in evidence under the said plea; and after-wards, to wit, on the 24th day of July, A. D. 1829, in pursuance of the rules of the said court, the said Jacob Brown, the defendant ™ ^at act*on> gave ^notice to the said Michael Brown and Solomon the that under the plea of payment by him pleaded as aforesaid, he would offer evidence to show that the bonds in question, to wit, the bonds upon which the action then to be tried was brought, which are parcel of the bonds taken by the said John Brown in part consideration of the said tract of land as aforesaid, were taken by the plaintiffs’ testator, (to wit, the said John Brown,) who was the defendant’s (to wit, the said John Brown’s) father merely as evidence that the defendant, (to wit, in the action then to be tried) had received so much (to wit, the amount contained in the said bonds) of his (to wit, the said John Brown’s) real estate, and on account of his portion therein, to be reckoned as such after his, the testator’s (to wit, the said John Brown’s) death, the same bonds, being for,part of the sum at which the testator (to wit, the said John Brown) valued certain real estate, (to wit, the said plantation and tract of land in the replication of the plaintiffs mentioned) which he had conveyed to his son the defendant, (to wit, the said Jacob Brown, defendant in that action) and at the same time and as a part of the same notice of special matters to be given in evidence under the said plea of payment aforesaid, the said Jacob Brown further gave notice that he would offer evidence to show that when the plaintiffs’ (to wit, the said Michael Brown and Solomon Heller’s) testator (to wit, the said John Brown) made his said will, he declared that the amount 'of these bonds (to wit, the bonds aforesaid upon which the said action was brought) should not be claimed against him, (to wit, the said John Brown) and in consequence of considering the amount of the said bonds as so much by way of advancement, he (to wit, the said John Brown) gave him (to wit, the said Jacob Brown) none of the real estate, and bequeathed him so much less and but a small part of his personal estate : and the said Jacob Brown at the same time and as part of the same notice of special matters to be given in evidence under the said plea, notified and informed the said plaintiffs that their testator (to wit, the said John Brown) if he ever designed to charge the defendant (to wit, the said Jacob Brown) by the bonds as aforesaid, forgave the debt.
    And the said Richard Brodhead further avers, that the said Jacob Brown pleaded no other plea, nor did he allege any other or further defence to the said action of the said Michael Brown and Solomon Heller against him as aforesaid, nor did the said Jacob ever give any other or further notice of special matter to be offered in evidence under the said plea of payment with leave as aforesaid, and therefore, to wit, on the 23d day of November, A. D. 1829, the said Michael Brown and Solomon Heller discontinued their said action against the said Jacob Brown.
    Without this, that the said Jacob Brown made defence to the said action, and refused to pay the consideration-money due by him to the estate of the said John Brown, deceased, on his purchase of *the premises as aforesaid, until the said lands should be first discharged from the lien and incumbrance due to the commonwealth as aforesaid, and alleges the said the arrearages in defence of the said claim, in manner and form as the plaintiffs in their replication and assignment of breaches have alleged; and this the said Richard Brodhead is ready to verify —wherefore he prays judgment if the said plaintiffs ought to have or maintain their action aforesaid thereof against him.”
    To this rejoinder of the defendant the plaintiffs demurred generally, and the defendant-joined in demurrer.
    On the 25th of August, 1837, the Court of Common Pleas gave judgment in favour of the defendant.
    The plaintiffs then removed the record to this Court, and assigned the following error, viz.
    
      
      “ The Court erred in entering judgment in favour of the defendant. The judgment on the demurrer should have been in favour of the plaintiffs.”
    Mr. Hepburn, for the plaintiff in error,
    said that there were two questions: 1st. Whether a breach had arisen ? 2d. Whether suit was properly brought in the name of the executor ?
    1st. The terms of the bond are very broad. They cover all loss from any incumbrance. The intention plainly was, that the obligor should pay the money due to the commonwealth. The .obligee had given full price for the land. The only sure Way of indemnifying is to pay off the incumbrance. ■ Culp v. Fisher, (1 Watts, 494). It is settled that a surety may bring suit before he is actually damnified. Bank v. Douglas, (4 Watts, 95); Miller v. Hower, (3 Penn. Rep. 374); Ramsay v. Gervais, (2 Bay’s Rep. 145). In none of these cases was the language as strong as this. Touissanit v. Martinant, (2 Term Rep. 100); Ghace v. Hinman, (8 Wendell, 452); Rockfeller v. Donnelly, (8 Cowen, 624); Bauer v. Roth, (4 Rawle, 98); Fleming v. Gilbert, (3 Johns. Rep. 528); Funk v. Voneida, (11 Serg. & Rawle, 109); Stephens on Pleading, 200, 201, 208; 1 Chitty’s Pleading, 195 ; Platt on Covenants, p. 330; Sedgwick v. Hollenback, (7 Johns. Rep. 378); Stannard v. Eldridge, (16 Johns. Rep. 254); Marston v. Hobbs, (2 Mass. Rep. 437; Van Slyck v. Kimball, (8 Johns. Rep. 198); Ludwell v. Newman, (6 Term Rep. 460).
    2d. He argued that the suit was rightly brought in the name of the present plaintiffs, as they were the persons damnified.
    Mr. B. Brodhead, Jr. for the defendant in error.
    *!• pleadings of the plaintiffs show no cause of action. The covenants respects the possession and not the title. The original purpose of the parties and the covenant they intended to make, are contained in the recital. Recitals frequently operate in restraint of and control the condition. Hurlstone on Bonds, 32, 43. A particular express covenant restrains a general covenant. 1 Saund. Reps. 60; Miller v. Heller, (7 Serg. & Rawle, 39).
    The covenant is for quiet enjoyment; or to indemnify and save harmless against incumbrances which were confessedly upon the premises at the time of sale. These covenants are similar; and to constitute a breach of either, an ouster or some disturbance of the possession must have occurred. 1 Esq. N. P. 275, 6; Marston v. Hobbs, (2 Mass. 437); Vanslyck v. Kimball, (8 Johnsons, 198); Platt on Cov. 312, 330. The demand or evic- • tion too, must be by some person having a legal right. 1 Selwin’s N. P. 393 ; Watton v. Hele, (3 Saund. Rep. 181). Neither is a covenant of general warranty, which is stronger than this, broken without ouster and eviction. Clark v. M'Anulty, (3 Serg. & Rawle, 419); Patton v. M'Farland, (3 Penn. Rep. 419); Kettog’s Adms. v. Wilcox, (2 Johns. 4). The commonwealth has made no demand ; an eviction is not pretended; and Patton v. MParland decides, that the grantor is entitled to all the delay she may give. The cases cited by the plaintiffs counsel, are cases of absolute judgments, or covenants broken as soon as made, or covenants against all liability. The plaintiffs’ testator purchased the land with notice of the incumbrances, and took a covenant against them. He could not therefore have alleged outstanding incumbrances, as a defence in an action which might have been brought on his bonds. Fuhrman v. Louden, (13 Serg. & Rawle, 386). It was his own folly then, to covenant with his vendee to give him a “ good deed” which according to the decision in Romig v. Romig, (2 Rawle, 243,) means a deed free of all incumbrances.
    The payment mentioned i-n the replication was rightly made to the assignee of the land. The act of assembly directs the proceedings to be had against the land and the owner of the land, for the collection of purchase-money due the commonwealth. If the payment had been made to the commonwealth, the assignee could have got a patent by paying the fees. Payment was not an acknowledgment of a breach. Platt on Cov. 316; 6 T. R. 66.
    2. But if the matters complained of do amount to a breach, the right of action belongs, not to the executors of John Brown, but to his heirs or assigns. The covenants of warranty against incumbrances and for quiet enjoyment are prospective, are real covenants, run with the land conveyed, and descend to the heirs; and a technical scruple that a chose in action is not assignable, should not prevent the assignee from having the benefit of all. The last purchaser and first sufferer should receive the indemnity.
    *3. If the plaintiffs are the proper persons to bring suit, all that be considered well pleaded in the replication, is sufficiently answered by the special traverse to which there is a general demurrer. The personal promises of the executor, are improperly introduced in this action against him, upon the bond of his testator; and he is not therefore bound to answer them. Grier v. Huston, (8 Serg. & Rawle, 404); Fritz v. Thomas, (1 Wharton’s Rep. 66). The passing them by, therefore, sub silentio, or with a protestando, is proper. A special plea admits all the facts to be' true which are well pleaded, except the one put in issue. Stephen on Pl. 255; 2 Salk. 561; The King v. The B. of Chester, (1 Big. Dig. 462).
    
      The inducement to the traverse contains a particular statement of the reason why Jacob Brown refused to pay the balance of the purchase-money due on his land. It is inconsistent with the statement of the reason 'given by the plaintiffs in their replication. It is a qualified denial and postponed the issue one step. The plaintiffs should therefore, have taken issue, by reasserting the matters traversed, under the words “without this.” Stephen, 215, 228, 230. An inducement to a special traverse, does not require so much certainty as in other cases, because it is not itself traversable. Laws on Pl. 118; Arch. C. PL 207, 208. If the inducement to the traverse, or the traverse itself is informal, the plaintiffs should have demurred specially. On general demurrer the Court examine the whole record, and decide as to right and justice may belong, without regard to formal defects. Laws, 168 ; 1 Saund. Pl. & Ev. 430. The demurrer confesses the matters set out in the inducement to the traverse, which is sufficient to prevent a recovery.
   The opinion of the Court was delivered by

Kennedy, J.

This case was determined in the Court below, upon the demurrer of the plaintiff, to the rejoinder put in by the defendant to the plaintiffs’ replication. The Court were bound to look into the whole record, and upon examination thereof, to give judgment for the party who, on the whole, appeared to be entitled to it. Notwithstanding then, that the rejoinder of the defendant may be insufficient, still if the plaintiffs have failed to allege what in law 'will amount to a breach of the condition of the bond on which the action is founded, they cannot claim to recover upon it. Piggot’s case, (5 Co. 29); Bates v. Cort, (2 Barn. & Cress. 474; s. c. 9 Eng. Com. Law. Rep. 151); Stephens on Pl. 175, 176.

It appears from the recital in the bond, that on the same day of its date, the testator of the plaintiffs sold and conveyed to the testator of the defendant a tract of land upon which “'certain incumbrances .by judgment and otherwise” existed. Among the incumbrances which existed otherwise than by was a balance of the *purchase-money, owing and unpaid to the commonwealth. As a security for the payment of this balance, the commonwealth merely retained the legal title to the land. And as a breach of the condition of the bond in suit, a neglect and refusal on the part of the defendant (not of his testator), to pay this balance to the plaintiffs, (not to the commonwealth to whom the money was actually due and owing), is assigned. But the condition of it is, not to pay this balance to the testator of the plaintiffs or his representatives, but merely to “save, indemnify, and keep harmless, the said John Brown, (their testator) his heirs and assigns, against all and all manner of judgments, liens, claims, demands, suits, actions, charges, dues, troubles and expenses, whatsoever, which had arisen or accrued by reason of any mortgages, judgments, arrearages of purchase-money, principal or interest, due or to become due from the land therein before mentioned, &c., or which have arisen or accrued in any lawful manner whatever, affecting the said premises, or which the said John Brown (testator of the plaintiffs), may thereafter sustain, suffer, or be put to, by reason thereof.” Now it seems to be difficult, if not impossible to construe these words so as to make it the duty of the obligor to pay to the obligee or his representatives, the purchase-money due to the commonwealth for the land, without his or their having first paid the amount thereof to her. Had this been done, it is possible that according to the decision in Broughton’s case, (5 Co. 24), this action might have been sustained. In that case the plaintiff being bound in a bond of ¿6200, for the defendant, conditioned for the payment of ¿6100 to A. B., at a future day, took from the defendant the bond on which the action was brought, with a condition, that “ if the defendant should save and keep harmless the plaintiff for all suits, quarrels, and demands, touching and concerning the said bond of ¿6200, then the obligation to be void,” &c. On the day for the payment of the ¿6100, the defendant not appearing to pay it, the plaintiff did so in order to save the penalty of the bond; and it was held that the plaintiff was entitled to recover on his bond of. indemnity. For as the court say, “ the payment of the ¿6100 was a damage and harm to the plaintiff, and if he had not paid it, a greater harm would have followed; and it was not necessary that the plaintiff should be arrested or sued.” It was also said, that the plea non fuit damnificatus implied that the defendant had saved the plaintiff harmless, as by release, payment, or otherwise. The principle of Broughton’s case, was adopted by the King’s Bench, in Ld. Mansfield’s time; and ruled the case of Ker v. Mitchell, (2 Chitty’s Rep. 487; S. c. 18 Eng. Com. Law Reps. 399). In some respects, the situation of the plaintiff in Broughton’s case, was different from the present. There the plaintiff was bound personally, for the payment of the ¿6100 at a subsequent day; and had it not been paid at the day, he would have become personally liable to pay double the sum; but *here there was no personal obligation upon the plaintiffs or their testator at time to pay the commonwealth the balance of the purchase-money for the land, nor was it money that was to be paid before a certain day then to come ; the neglect of which would have rendered the testator of the plaintiffs liable to a penalty. The payment of the money to the commonwealth might have been enforced by proceeding against the land, long before the giving of 'the bond in suit. Whether this difference, however, would have been sufficient to have exempted this case from the operation of the rule of decision in Broughton’s case, provided the plaintiffs or their testator had paid the money voluntarily to the commonwealth, is not a question that requires to be settled here; and is therefore passed without giving any opinion upon it. But without payment of it to- the commonwealth, or some attempt upon her part, to compel the payment of it, by proceeding against the land, I am at a loss to see how it can be said that there could be a breach of the condition of the bond in this respect. It is said that conditions of bonds are to be regarded as the words of the obligee, and ought therefore to be construed favourably for the obligor. Butler v. Wigge, (1 Saund. 66, a); Bose v. Day & Wife, (1 Wils. 61; 3 Salk. 95); Stanley v. Fearne, (3 Lev. 138); Eaton v. Butler, (Wm. Jones, 181). This rule, however, I apprehend, is to be understood as being more properly applicable when the words of the condition are ambiguous, or somewhat obscure. In such case doubtless the words are, generally, to be understood in that sense which is most favourable for the obligor. Turner v. Goodwin, (10 Mod. 154, 228). But still they must receive a reasonable construction, Colthirst v. Bejushim, (Plow. 30, 34,) according to the intention of the parties, so that it may be carried into effect. Thorpe v. Thorpe, (1 Salk. 171, 172.) And for this purpose a construction contrary to the words in the condition of a bond, has occasionally been given to it; as where it ran, “ If the obligor shall not pay a certain sum, &c., then the obligation to be void,” &c.; the word “ not” has been rejected as repugnant to the design of the obligation, as insisted by the whole tenor of it. Mills v. Wright, (1 Freem. 247 ; Ca. 261); s. c. Wells v. Wright, (2 Mod. 285); Vernon v. Alsop, (1 Lev. 77; s. c., 1 Sid. 105, 106); Wells v. Ferguson, -(11 Mod. 193, 199; s. c., 2 Salk. 463); Bache v. Proctor, (Doug. 383, 384).

It cannot be pretended, that the condition here is for the payment of the balance of the purchase-money to the state herself, within any specified time; and much less, certainly, to the obligee or his representatives. Nor can it be fairly said that any intention of the kind is manifested by its terms, yet it would have been easy to have said so, had it been so intended by the parties. And most clearly the obligee, unless the bond gave him a right to demand and receive the money, without more, from the obligor, had none whatever to it. But it is equally clear that the condition of the bond extends no ^further than to save, indemnify, and Iceep harmless, the obligee, his heirs and assigns, from all or any damage or loss which should arise or accrue to him or them from its being due to the state and suffered to remain unpaid. I am willing to concede that it is so in terms; and this is the utmost that can be required by the plaintiffs, without a total disregard to the ordinary meaning of the words used therein, for there is nothing presented on the face of the instrument, that goes to show that more was intended. Taking this then to be the nature and the extent of the condition, I am willing also to concede, that if the obligee afterwards, being desirous of selling the land, had been offered more for it, discharged from the balance of the purchase-money due to the state, than subject to it; and he, in order to obtain the higher price, had paid the state, he would have been justified in doing so; and having become thus damnified to the amount so paid, would have been entitled to recover remuneration by action upon the bond. But it appears to me that it would be going too far, to say that without any proceeding whatever on the part of the state, having been instituted by her against the land to obtain payment, or the money having been paid to her by the obligee or his representatives, the condition of the bond is broken. I cannot think that less than an act of some kind on the part of the state, in relation to her claim against the land, was intended to be provided for by the parties in giving and accepting the bond.

It is alleged, however, that the defendant, as the executor of the obligor, admitted that the estate of his testator was liable under the bond to pay the state, and accordingly promised that he would do so. Suppose it to be true, that he did make such admission and promise, still that would not change the legal tenor and affect of the bond; and if he has made a binding promise, and has violated it, he cannot be called to answer for it by a suit upon the bond.

Again, it is alleged, that the defendant, as the executor of the obligor, agreed, in consideration that the plaintiffs would release Jacob Brown from the payment of so much of the consideration-money, due by him to the estate of the testator of the plaintiffs, upon a sale made of the land to him, by their testator in his lifetime, as would be equal to the amount of the balance of the purchase due to the state, that he, the defendant, would pay it to the plaintiffs; and that the plaintiffs, confiding in this promise of the defendant, did accordingly, release Jacob Brown, who undertook to pay the state, but, as is admitted, has not done so. It is impossible, as it appears to me, to conceive how a breach of such an undertaking by the defendant here can be converted into a breach of the condition of the bond of his testator. It is not contended, that the release by the plaintiffs of Jacob Brown would have entitled them to sue on the bond, if the defendant had not been consenting to it, and promised payment of the sum released by the plaintiffs to Jacob Brown. This of itself would seem to show, that if there be any duty on the part defendant to pay, it does not arise upon the bond, but out of the promise made by the defendant. is not plain allegation plaintiffs, they have any right to demand the money of the defendant, that it is because they released a right which they had against Jacob Brown for the same amount of money, upon the faith and credit of the promise made by the defendant, and not because the bond of his testator provided for their doing so, and furnished a security to them for the payment of the amount thus released ? A collateral agreement by parol, may, it is true, be made, and if executed, may be sufficient to discharge or extinguish a bond, because by the agreement of the parties, it being executed, the obligee obtains satisfaction of the bond, and it would therefore be unjust, in any subsequent event, to permit him to set up the bond for the purpose of obtaining satisfaction a second time; but the agreement alone will not discharge or release any existing right under the bond; nor was it ever heard of, I think, that a refusal to perform such collateral agreement would amount, per se, to a breach of the condition of the bond, or give the obligee a right to sue and recover on it.

The judgment is affirmed.

Judgment affirmed.

Cited by Counsel, 6 Barr, 466.  