
    Pickering against Stapler.
    Monday, March 29.
    A water-right appurtenant to a mill, passes by the word appurtenances, and a vendor is not bound to insert the word "Privileges" in a deed for the purpose of conveying such right, though it may be contained in the contract between the vendor and vendee.
    Though such vendor declare at the time a deed is to be executed that he neither bought nor sold the water-right, such declaration is of no importance if the deeds convey the right.
    If the vendor bind himself to execute a deed and deliver possession, and the vendee refuse to accept the deed, on account of an alleged defect in it, he cannot entitle himself to damages by shewing that the vendor was not able to deliver possession.
    
      JOHN STAPLER the defendant, on the 11th January, 1814, purchased of William Nixon, sheriff of the county . Hunterdon, in the State of New Jersey, at public auction, two contiguous parcels of land, one containing 20 acres, and , , ° r . the other a quantity not ascertained, which had been mortgaged by a certain David Parry to Azor I .likens, who assigned the mortgage to Abraham Chapman. Chapman obtained a decree in chancery for the sale of the mortgaged premises, and by virtue of that decree, they were sold by sheriff Nixon to the defendant. The 20 acre lot was scribed in the sheriff’s deed, by metes and bounds ; and the smaller lot was described as follows : “ also all that part of * a certain lot of land situate and lying on the river Delaware, in the township and county aforesaid, which lies opposite to, and against the lot herein first described, be the same more or less, the lot according to the metes and boundaries thereof originally containing nine acres.” After describing the two lots in the manner before mentioned, the sheriff’s deed contained the following expressions: “also the dwelling house, saw-mill, and plaster-mill, to the same two lots belonging, and also together with all and singular the appurtenances and the reversions, remainders,” &c. &c. The price paid by the defendant was $ 7600, and the sheriff’s deed to * J 7 A him bore date the 6th September ¿ 1814. Attached to this property, was the right of making use of a mill-dam on land lying above it, and of a water passage to and from the dam. On the 3d December, 1814, the defendant advertised the property which he had purchased of sheriff Nixon, toge-t¡ler xvith all the rights, privileges, and appurtenances belonging to it, for sale, and the plaintiff became the purchaser for the sum of g 7650 dollars. The terms of sale were proposed in writing by the defendant, and accepted in writing by the plaintiff. The substance of these terms was as follows. The sum of g 7600 (the price given by the defendant to sheriff Nixon) was to be paid to the defendant for his own use, one-half thereof on the 1st April, 1815, when he was to give a title and possession to the plaintiff on the plaintiff’s giving satisfactory security to pay the other half of the said g7600 on the 1st October, 1815, with legal interest of New Jersey, and the residue (being all that was over and above the said g 7600, and being intended for the benefit of those persons who were mortgagees of the same property by deed from David Parry, subsequent to the deed of mortgage under which the defendant derived his title) to be paid at such time as the subsequent mortgagees should agree to. At the time appointed for the first payment, the plaintiff and defendant met. The plaintiff had his money ready, and the defendant offered him a deed executed by himself and his wife. This deed described the property in the same words by which it was described in sheriff Nixon’s deed to the defendant. But the plaintiff objected to it, as not sufficient to convey the water right. He wanted the word privileges inserted, because the defendant's terms of sale contained that word. The defendant refused to alter the deed, and added that he had neither bought the water right of the sheriff, nor sold it to the plaintiff. The plaintiff gave evidence to prove that one of the tenants refused to give up his possession. The declaration set forth the agreement between the plaintiff and the defendant, and charged the defendant with a breach of his assumption, in not making title or delivering possession.
    The cause was tried before Duncan J. at the Nisi Prius, in July last, who was of opinion, that the deed offered by the defendant was conformable tp his agreement, and that it was not incumbent on him to deliver the possession, inasmuch as the plaintiff refused to accept the deed. The jury found a verdict for the defendant; and a new trial was moved for, on the ground of misdirection of the Judge in point of law.
    
      J. R. Ingersoll and Chauncey for the plaintiff,
    in support of the motion for a new trial contended, that the defendant had broken his contract in two respects 5 first, in not delivering possession; second, in not making a title.
    1. The plaintiff was ready at the day to perform his agreement, but the defendant was not ready to deliver possession, nor was he able to do so, another person being in possession who refused to give it up, and who could not be turned off, because he had received no notice.
    
      2. The title offered by the defendant, was not pursuant to his contract. He had agreed to sell the land “ with all its rights, privileges, and appurtenances the plaintiff, therefore, had a right to a deed with these very words. Even if it be admitted, for argument’s sake, that the word, appurtenances, embraces all that the word privileges does, still the plaintiff had a legal right to insist on the word privileges being contained in the conveyance. It was possible, however, that since the sheriff’s sale, the defendant had done something to extinguish, or convey away some of the privileges, in which case they would not be appurtenances at the time of executing the deed, and would be exempted under that word. And this is rendered probable, and might have been inferred by the jury, from the defendant’s declaration, that he had neither bought the water-right, nor sold it to the plaintiff. In another point of view, this declaration was a breach of contract, and fraudulent on the part of the defendant. It is the settled law of Pennsylvania since the decision of Hurst v. Kirkbride, that conversations at the time of executing a deed may be given in evidence : and if the plaintiff had accepted a deed under such a declaration by the defendant, it is manifest, that the right would not have passed.
    
      Morris and Rawle, contra.
    The agreement in effect was, that the defendant should convey to the plaintiff what he had purchased of the sheriff. The sheriff’s deed, is for certain lands with the appurtenances. If the water-right passed by these words, it was alsp conveyed by the deed tendered to the plaintiff. If it did not pass by the sheriff’s deed, it neither did, nor ought to pass-by the defendant’s. But the word appurtenances includes every privilege as to water, which was attached to the land. There can be no doubt a water-right may be appurtenant to a mill, and will pass by a grant of the mill, unless expressly excepted. Blaines' lessee v. Chambers.
      Nicholas v. Chamberlayn.
      
      Dunbar v. Jumper.
      
       4 Yeates 142. 3 Vin. 2 pl. 5. 4 pl. 22, 23. Jenk. Cent. 310. Case 91. It cannot be presumed, that the defendant had aliened any part of the property: if such were the fact, it was the duty of the plaintiff to shew it. As to the argument, that the defendant was not ready to give possession, it was not upon that the parties separated. The plaintiff refused to receive the deed as it was offered, and therefore the delivery of possession was dispensed with. The plaintiff certainly could not be bound to deliver possession after such refusal; nor was the defendant entitled to possession, unless the land was conveyed to him. Besides, if the plaintiff were bound to deliver the possession, it might have been done without turning off the tenants. The possession of the tenant, is the possession of the landlord.
    
      
      
         1 Binn. 616.
    
    
      
       1 Serg. & Rawle, 169.
    
    
      
      
        Cro. Jac. 121,
    
    
      
       2 Yeates, 74.
    
   The opinion of the Court was delivered by

Tilghman C. J.

(After stating the case.) I cannot perceive, in what the deed offered by the defendant was deficient. The water-right was appurtenant to the mill, and passed by the word appurtenances. It was unnecessary therefore to insert the word privileges. This appears so plain, that he who denies it, should shew the authority on which he rests his opinion. No such authority has been shewn. But on the part of the defendant, cases were produced, shewing that privileges of the kind in question, pass by the name of appurtenances. In Nicholas v. Chamberlayn, [Cro. Jac. 121.) it is held, that if the owner of a house builds a conduit thereto, in another part of his land, and conveys the water, by pipes, to the house, and then sells the house with the appurtenances, excepting the land, the conduit and pipes pass, together with a right to dig and open the earth for the purpose of repairing the pipes or laying new ones if necessary. And in Blaines’ lessee v. Chambers, (1 Sergt. Rawle, 169.) it was decided by this Court, that by a devise of a mill -with the appurtenances, the right to the use of the water, and the right to that piece of land which was always used with the mill, would pass. Indeed I do not understand the plaintiff’s counsel as denying that the water-right in the case before us, would pass by the word appurtenances, provided it remained appurtenant at the time of the execution of the defendant’s deed ; but they suggested, that probably the defendant might have extinguished this privilege, before the date of his deed. Such a thing, to be sure, was possible, but no proof whatever having been given of it, there was no ground for presuming it. The right which the defendant had acquired by the sheriff’s deed must be supposed to remain in him, until shewn to have passed from him. But the plaintiff relies much on the defendant’s declaration, that he had neither bought nor sold the water-right. I confess I cannot see how that alters the matter. The defendant agreed to sell all that he had purchased of the sheriff; and he certainly conveyed all that he had purchased, because the words of the sheriff’s and of his own deed, are the same. Of what importance then, is the defendant’s opinion, of the effect of these deeds ? Provided the plaintiff gets the title, he has nothing more to ask. The defendant meant to convey all that he had received from the sheriff: he supposed, that this water-right was not comprehended in the sheriff’s deed, but if it was, he passed it to the plaintiff by words equally comprehensive. He therefore performed his contract substantially, although he refused to gratify the plaintiff by the use of the word privileges. Then as to the delivering of possession ; — how could possession be delivered, when the title was refused to be received by the plaintiff? It never was intended that he should have the possession without the title. Nor would he have made the first payment without title, although he had the money ready.Possession without title, would have been the shadow instead of the substance. It was what was never contemplated by either party. In the order of the business, the conveyance of the defendant and payment by the plaintiff came first, and they were simultaneous acts. Afterwards was to be a delivery of the possession. It appeal's to me, therefore, that when the plaintiff refused to accept the defendant’s deed, he dispensed with the obligation to deliver possession, and cannot entitle himself to recover damages, by shewing, that if he had accepted the deed, it would have been out of the defendant’s power to deliver possession. I am of opinion that the motion for a new trial should be rejected, and judgment entered for the defendant.

Motion for a new trial rejected, and judgment for the defendant.  