
    Murray v. Smith, Administrator, &c.
    An exception to the whole charge of a judge to a jury is too broad, and therefore bad, if any part of the charge be correct.
    The case is not altered by making the exception to the whole charge “and each and every part thereof.”
    A conveyance of an undivided moiety of mortgaged premises, “ subject to the one half part of the mortgage,” does not create a personal obligation on the part of the grantee to pay one half of the mortgage debt.
    The provision in the R. S. that “ no covenant shall be implied in any conveyance of real estate," is to be construed as meaning that no obligation, covenant, or promise to do or pay an3'thing shall.be implied against either party to such conveyance, from the terms of the conveyance itself.
    
      (Before Oakley, Ch. J., Paine and Bosworth, J.J.)
    Nov. 18, 19, 1852;
    Jan. 29, 1853.
    But this construction is not inconsistent with the established rule, that either party to a conveyance is at liberty to show for any purpose, except to prevent its operation as a valid grant, that its true consideration was greater or less, and even wholly different from that which it specifies.
    It follows, that evidence of an actual promise of a grantee to pay one half of a mortgage debt, subject to which the conveyance was made to him, is admissible, if, upon this promise, the deed was executed and accepted.
    Evidence of such a promise is entirely consistent with the clause making the premises conveyed subject to one half of the mortgage debt; its sole effect is to enlarge the consideration expressed.
    Nor is the statute of frauds, as excluding parol evidence of such a promise, applicable to the ease.
    While the agreement between the parties, which embraced the promise, was executory, it was binding upon neither, but when it was executed by the delivery and acceptance of the conveyance, the promise became valid and could be enforced.
    As a general rule, when improper evidence has been admitted upon a trial, and an exception duly taken, a new trial must be granted, if the evidence had any bearing upon the issue, and could possibly have had an influence upon the verdict.
    But when the cause is before the court upon a case containing the whole evidence, although it may appear that improper evidence was admitted, the verdict will not be disturbed if the court is satisfied that substantial justice has been done, and that excluding the improper evidence, the same verdict ought to have been and would have been given.
    
      Held, by a majority of the court, that the same rule ought to be followed when the question arises upon a bill of exceptions, which purports to contain the whole evidence given upon the trial.
    New trial denied, and judgment for plaintiff upon verdict affirmed.
    Appeal by the defendant from a judgment at special term ' upon a verdict in favor of the plaintiff.
    The action, which was commenced before the Code, was upon special promises, and the issues raised by the pleadings were tried before Mr.* Justice Paine and a jury in November term, 1851. The suit was originally brought against Peter Smith, as surviving executor of the last will, &c., of Hugh Smith, deceased. Upon the death of the executor, the present defendant, Bartlett Smith, as administrator, with the will annexed, was made the defendant.
    The first count of the declaration stated, in substance, that Hugh Smith, in his lifetime, in consideration that the plaintiff, Peter Murray, would convey to him in fee an equal undivided half part of certain lots, of ground, particularly described, in the village of Williamsburgh, undertook and promised to keep the plaintiff harmless, and indemnified from all loss or damage, by reason of the one equal half part of the moneys due and to become due upon a certain mortgage upon "the said lots, before that time executed by the plaintiff to one William P. Powers, to secure the payment with interest of the sum of $1,204, on or before the 12th of ¡November, 1838. That the plaintiff, relying upon this promise, conveyed to the testator on the 13th of December, 1835, the one equal half part of the said lots, subject to the one equal half part of the said mortgage; but that neither the said Hugh Smith, in his life, nor the defendant, sinbe his death, had indemnified the plaintiff, according to the said promise and undertaking. It then averred that the plaintiff had duly paid the one half part of the mortgage debt which he was bound to pay, but that the other half part remaining unpaid, the holder of the mortgage instituted a suit in chancery for the foreclosure thereof. That a decree in that suit of foreclosure and sale was duly made, ordering the premises so conveyed to Hugh Smith to be sold for the purpose of satisfying the amount, with interest and costs, then due upon the mortgage; and further directing, that if the moneys arising from the sale should be insufficient to satisfy such amount, &c., the said plaintiff should be decreed to pay the amount of the deficiency.' That a sale under the decree was accordingly made, and that there was a deficiency in the proceeds amounting to $532 40, which sum the plaintiff had been compelled to pay, whereby he was damnified, &c.
    The second count of the declaration differed only from the first in stating the promise of the testator, H. Smith, to be, not to indemnify the plaintiff, but to pay to th& owner and holder of the mortgage one equal half part of the moneys due and to grow due thereon.
    To these special counts the usual money accounts were added.
    The defendant pleaded the general issue and the statute of limitations, and annexed a special notice, the contents of which it is not deemed necessary to state.
    The following facts were proved upon the trial:
    . In October, 1835, Peter Murray bid off at auction eight lots of land lying in Williamsburgh, Kings county. Hugh Smith, the defendant’s testator, was present at the sale, and Murray stated in his presence, on the same day, that they, Murray and Smith, were jointly interested in the purchase, which Smith did not deny. Pinckney, the lawyer who searched the title, made out his bill for the service against Murray and Smith; and, though his recollection was faint, “ he thought that both of them spoke to him on the subject” of looking into the title and seeing the vendor. Considerable circumstantial testimony was offered, tending to show that Smith and Murray were speculators together in the purchase and sale of lands.
    The eight lots were conveyed to Murray by William P. Powers, November 12, 1835, for $1,725. And on the same day Murray gave his bond and mortgage to Powers for $1,204, part of the consideration money, payable on or before November 12,1838, with interest at six per cent, payable in the meantime, semi-annually.
    The precise sum paid to Powers on the purchase was $516.
    Murray conveyed to Smith, December 13, 1835, in consideration of $258, being one-half of the last named sum, one equal undivided half part of the eight lots, “ subject to the one-half part of a mortgage of $1,204, given by the said Peter Murray to William P. Powers,” &c. Peck, the subscribing witness to this deed, who identified Murray before the commissioner, did not recollect that any money passed between the parties at the time.
    Smith died in February, 1837. And afterwards, June 15, 1839, Murray paid to one William H. Smith, assignee of the Powers’ bond and mortgage, $602 in full, for half of the principal, and $21 30 in full, for half of the interest due thereon.
    W. H. Smith, the assignee of the bond and mortgage, filed a bill of foreclosure, September 10, 1839, for the balance due on his mortgage, against the one-half of the premises which had been conveyed by Murray to Hugh Smith, making Murray and the representative of Hugh Smith, defendants. That share was' accordingly sold under a decree in that suit; the costs were first paid, and the residue applied to the mortgage debt. The deficiency was decreed personally against Peter Murray.
    
      The deficiency was $532 40. The costs of foreclosure amounted to $352 79. On September 30,1843, Peter Hurray paid the deficiency which had been so decreed against him.
    Peter Hurray claimed this deficiency, in due form, from the executor, who refused to pay or to refer.
    Peter Hurray was- the purchaser at the' foreclosure sale. Hugh Smith’s eldest son, and the attorney and counsel for the executor, were present at the sale.
    It was also proved that the assignee of the mortgage purchased it, accepted the payment of one half, and foreclosed and sold for the residue at the suggestion of the plaintiff. Hpon the trial certain letters of H. Smith, the testator, were admitted to be read in evidence, which contained no reference to the purchase of the lots in question, but proved that he was jointly interested with the plaintiff in other similar purchases.
    An affidavit of the plaintiff annexed to the claim exhibited by him to the executor of H. Smith against the estate, and swearing to its validity, was also allowed to be read in evidence.
    To the admission both of the letters and affidavit, as irrelevant and immaterial, the counsel for the defendant duly excepted.
    When the testimony on the part of the plaintiff was closed, the counsel, for the defendant moved for a nonsuit upon the following grounds:
    1. That by the deed from Hurray to Smith, the equity of redemption only was conveyed for the consideration money expressed in the deed; that no covenant could be implied from such deed; that the provisions of the deed did not impose any obligation on Hugh Smith to pay the half of the mortgage, and that the testimony given in evidence by the plaintiff did not show any other consideration for that conveyance than such as was expressed therein.
    2. That the alleged agreement of joint purchase upon which it was claimed that the deed to Hurray was taken in his individual name for the benefit of himself and Hugh Smith was void, and could not enter into or form part of the-consideration of the deed subsequently executed by Hurray to Smith.
    3. That the evidence introduced by the plaintiff, of the transactions prior to the deed from Hurray to Smith, if of any effect, showed a general partnership in trading in other real estate than the premises in question, and that this suit could not he maintained.
    4. That the evidence did not support either count in the declaration.
    The judge denied the motion, and the counsel excepted to the decision.
    After the evidence on both sides was closed, the defendant’s ' counsel requested the judge to charge the jury as follows:
    1. That it was to be presumed from the deed from Hurray to Smith, that the entire contract between the parties was contained in its provisions, and that all previous negotiations had been merged in the deed.
    2. That the conveyance subject to one half the mortgage imposed no obligation, express or implied, on Hugh Smith to pay the one half of the bond and mortgage to Powers.
    3. That there was no evidence in the case of any agreement to indemnify the plaintiff from the one half of the bond and mortgage to Powers.
    4. That the plaintiff could not recover upon any of the common indebitatus counts.
    5. That whatever were the considerations existing at the date of the deed from Powers to Hurray, the legal result of that transaction was to determine any subsisting interest of Hugh Smith in the premises conveyed by that deed.
    6. That the mutual covenants and agreements in the deed from Hurray to Smith, repel any presumption that any other considerations or agreements existed between the parties in relation to the transaction than such as were expressed in the deed.
    7. That the Statute of Limitations ran against the alleged promise to pay one half the bond and mortgage.
    8. That the plaintiff was not entitled in any event to recover the entire amount of the deficiency on the foreclosure sale, but that the amount of the costs of the foreclosure suit, in any event, should be deducted.
    9. That the agreements on the part of Hugh Smith, contained in the deed from the plaintiff to him, were binding on him, although he had not signed or sealed the deed.
    But the judge refused to charge the jury as requested by defendant’s counsel in the said several first, third, sixth, seventh, and eighth of said several propositions, or any of them, to which several refusals defendaht’s counsel excepted.
    The judge, in his charge, submitted it to the jury to determine whether they were satisfied, from the evidence, that the promise set forth in the second count of the declaration had, in fact, been made by the testator. If they were so, he directed them to find a verdict for the plaintiff for the sum that was claimed.
    To which charge, and to each and every part thereof, the defendant’s counsel excepted.
    The jury found a verdict for the plaintiff for $794TW.
    The cause now came before the court upon a bill of exceptions, embracing.all the evidence given, and all the exceptions taken, upon the trial. -
    
      J. Van Buren, for the defendant,
    supported the demand for a new trial upon the following grounds and authorities :&emdash;
    I. The judge erred in admitting parol testimony of any negotiations or transactions, between the plaintiff and Hugh Smith, prior to the 13th day of December, 1835 (the date of the deed from Peter Murray to Hugh Smith), as they were irrelevant and immaterial, and were incompetent either to enlarge, vary, or explain the contract evidenced by the deed, or to show any agreement, relating to the bond and mortgage to Pow'ers, not contained in the deed. 1. The legal construction and effect of the deed, was to convey one half the premises, subject to the lien of one half the Powers mortgage, without imposing upon the grantee any personal obligation to assume or pay one half that mortgage. (Tillotson v. Boyd, 4 Sand. S. C. 416; 1 R. S. 738, § 140; Culver v. Sisson, 3 Com. 266.)
    Its legal expression, in the absence of other written evidence, was, that the grantee assumed the obligation thus defined, and none other. (La Farge v. Rickert, 5 Wend. 157; Cleery v. Holly, 14 Wend. 30; Mumford v. McPherson, 1 J. R. 414; Bayard v. Malcolm, 1 J. R. 467; 2 Cow. & Hill’s Notes, 1470.)
    2. The- special covenant of the grantee in the deed was obligatory on him as an agreement, although he did not sign the deed, and the written agreement, thus containing stipulations on the part of each party, merged all prior negotiations, treaties, or verbal agreements; it expressed the extent of the obligation intended to be imposed or assumed, with reference to this mortgage, and it was improper to show, by parol, any intent beyond that expressed in the writing, “ pkpressvmfacit cessare taciturn.” (Torrey v. The Bank of Orleans, 9 Paige, 659; Sinclair v. Jackson, 8 Cow. 586; Story on Cont. § 11, 15; Toussant v. Martinnant, 2 T. R. 105; Preston v. Merceau, 2 W. Bl. 1249; Van Nostrand v. Reed, 1 Wend. 424; Vandekarr v. Vandekarr, 11 J. R. 122; Howes v. Barker, 3 J. R. 509; Johnson v. Miln, 14 Wend. 200; Hunt v. Amidon, 4 Hill. 346; Niles v. Culver, 8 Barb. S. C. 207.)
    3. The parol testimony offered to show, an equitable obligation on the part of Hugh Smith to pay one half the Powers 'mortgage, arising out of a subsisting responsibility as an original joint purchaser, or a title taken by the plaintiff on joint account, was in direct- contradiction to the rights and obligations of the parties as expressed in the deed.
    The plaintiff covenants, in thé deed, that he was “ lawfully seized in his own right of .a good, absolute, and indefeasible estate of inheritance in fee simple,” in the premises conveyed, and otherwise warrants the title.
    This estopped the parties from claiming that the title- was held in trust, on joint and equal account. (Rathbun v. Rathbun, 6 Barb. S. C. 98; Sinclair v. Jackson, 8 Cow, 586.)
    And as the representatives of Hugh Smith are precluded from asserting any equitable rights growing out .of any such prior relation between him and plaintiff, the estoppel is reciprocal.
    H. The motion for nonsuit should have been granted, for the reasons urged on the trial.
    No express agreement to pay one half .the mortgage was shown, nor were there any circumstances proved from whicji an agreement tg that effect |s attempted to be implied, except the proof tending to show that the original purchase was on joint account.
    1. There were no subsisting legal or equitable considerations, at the time the conveyance from plaintiff to Hugh Smith was executed, upon which an implied agreement of Hugh Smith to pay half the Powers mortgage could he predicated. (Fowler v. Poling, 2 Barb. S. C. 300; Stafford v. Hill, 2 Hill. 353; Ehle v. Judson, 24 Wend. 77.)
    A. Any interest which Hugh Smith might have had in the original purchase was merged in the deed given, with his assent, by Powers, to the plaintiff alone, and no resulting trust existed in his favor; .nor were there any existing rights which he could enforce, or which could he enforced against him. (Padgett v. Lawrence, 10 Paige, 171; Brewster v. Power, 10 ib. 569; Lathrop v. Hoyt, 7 Barb. S. C. 59; 2 R. S. 134, § 6; 1 R. S. 727, § 47, 49; Smith v. Burnham, 3 Sumner, 458.)
    B. There was ho evidence of what transpired between the parties when the deed from Hurray to Smith was delivered, nor that any consideration existed or operated on either party, except those evidenced by the deed; or that they-dealt together otherwise than according to the legal relation then subsisting between them.
    The exception to the opinion and decision of the judge, upon deciding the motion for a nonsuit upon this point, was, for these reasons, well taken.
    2. There was no count in the declaration under which the plaintiff was entitled to recover.
    A. Ho recovery could he had upon the common mdebitakis counts, alleging money paid, loaned, advanced, and an accounting had, &e., with Hugh Smith in his lifetime.
    The indebtedness in this case, if any, was created by the decree against, and payment by, the plaintiff in 1843, five years after the death of Hugh Smith, and the granting of administration upon his estate. (Stewart v. Eden, 2 Caines’ R. 121.)
    B. Hor on either the first or second counts.'
    
      {a) The first count alleged that $258 cash paid, and the promise to indemnify the plaintiff against the one half of the Powers mortgage was the price of the property sold. .
    Ho such' promise was proved. A promise to indemnify against a debt is a far different promise from one to pay it. (Ex parte Negus, 7 Wend. 499; Thomas v. Allen, 1 Hill. 145; Churchill v. Hunt, 3 Denio, 321.)
    (6.) The second count alleged $258 cash paid, and the promise to pay one half of the Powers mortgage, to be the price or consideration of the conveyance.
    If any implied obligation existed on the part of Hugh Smith, there is an entire variance and misdescription of the consideration, as set out in either the first or second counts. (1 Ohitty PL, 326-7.)
    The consideration moving from the plaintiff was not alone the conveyance, but also the covenants of warranty.
    The obligation (if any) "on the part of Hugh Smith, having reference to the pre-existing relations, claimed to have existed between him and plaintiff, was not alone to pay the half of the mortgage to Powers, but also half the lawyers’ bills, and any other disbursements connected with the purchase; from which again, he was entitled to deductions for any moneys which might have been received by plaintiff on joint account. The right of either, if any existed, was to an accounting as joint tenants or tenants in common, and this is a clear case of an attempt to recover for one item of a copartnership account, or of an account between joint tenants or tenants in common, without showing either that it was the sole item (the proof being to the contrary), a balance struck, or any express promise to pay. (1 Chitty Pl., 7 Am. Ed. 44, and cases cited, notes 72, 73,74.)
    HI. The judge erred in refusing to charge as requested.
    1. “ That it was to be presumed from the deed that the entire contract between the parties was contained in its provisions, and that all previous negotiations had been merged in the deed. All the authorities cited under point I. show that this presumption was a legal inference from the written contract.
    2. “ That there was no evidence, in the case, of any agreement to indemnify the plaintiff from one-half the mortgage to Powers.” Though a payment of the principal debt might insure indemnity, yet indemnity was a very different obligation, which might well be effected without payment.
    3. “ That the mutual covenants and agreements in the deed from Hurray to Smith, repel any presumption that any other considerations existed between the parties, in relation to the transaction, than such as were expressed in the deed.”
    The proof afforded by the deed, that Hugh Smith did not assume to pay half the Powers mortgage) was so strongly presumptive of the fact, that it could only be rebutted by express' proof to the contrary. (Tillotson v. Boyd, 4 Sand. S. C. R. 416.)
    IV. The judge erred in admitting as evidence to the .jury,
    1. The affidavit of Hugh Smith. It had relation to another matter occurring about a year subsequently, and had no corn nexion with this transaction.
    2. The letters from Hugh Smith to plaintiff. They also related to other and subsequent matters.
    3. The letter from T. 0. Pinckney. As the plaintiff has only succeeded in convincing a jury of the existence of an obligation on the part of Hugh Smith, as a joint purchaser with the plaintiff, by the ingenious combination of scraps of testimony, the court cannot fail to see that the admission of either of these pieces of evidence must have had its weight with the jury; and, if either of them was improperly admitted, the defendant is entitled to a new trial. (Farm. & Manu. Bk. v. Whinfield, 24 Wend. 426; Clark v. Vorce, 19 Wend. 232; Dresser v. Ainsworth, 9 Barb. S. C. 619.)
    V. A new trial should be granted, with costs to abide the event of the suit.
    
      C. O'Conor for plaintiff, contra.
    
    I. The acceptance of the deed by the defendant’s testator was sufficient evidence of a promise, on his part, to pay the one half of the mortgage to Powers. (Burdett v. Lynch, 5 B. and Cr.; Wolveredge v. Steward, 9 Bingh. 60.)
    H. If the words. of the deed are in this respect obscure or doubtful, extrinsic evidence was admissible to elucidate their meaning. (Bradley v. Washington Packet Co. 13 Peters 97, 101, 103; Cole v. Wendell, 8 Johns. 116; Walrath v. Thompson, 4 Hill. 201.)
    HI. This was a suit for an ascertained sum paid by plaintiff" to the use of the testator in the course of a joint speculation in lands.
    • 1. The objection that an executory copartnership for the purpose of dealing in lands, is repugnant to the statute of frauds, has no application, after the titles to the lands are all settled by deed, as in this case. (Smith v. Burnham, 3 Sumner, 458; Hess v. Fox, 10 Wend. 440; Griffith v. Young, 12 East. 523; Hall v. Hall, 8 N. H. R. 131; Barber v. Taylor’s heirs, 9 Dana, 87.)
    IY. The circumstances of the case show clearly that the price-agreed to be paid by the defendant’s testator for the conveyance to him by Murray, was one half of the original consideration money; which includes, of course, one half of the mortgage.
    1. The consideration clause of a deed has always been considered open to explanation, enlargement, or contradiction by oral evidence, for the purpose of giving efficacy to the conveyance, or of establishing any mere personal claim growing out of the transaction. (Shepard’s Touchstone, 222; Jackson v. Fish, 10 J. R. 456,16 J. R. 515; McCrea v. Purmont, 16 Wend. 460; Groenvelt v. Davis, 4 Hill, 647, 5 N. H. R. 82.)
    2. The only limitation to this kind of proof, is, that it cannot be received to avoid the conveyance, or to defeat the title thereby created.
    • Y. There is no ground for deducting the costs of the foreclosure. - *
    1. If the mortgagor had sued Murray upon his bond, or foreclosed the mortgage against Murray’s share of the lands, the latter would have had a right to insist, as against Hugh Smith’s representatives, that Hugh Smith’s share of the land should be first applied to the payment of the debt. (King v. Baldwin, 17 J. R. 390, 391, 393; 10 Wend. 162; 13 Wend. 176.)
    2. In case of a suit at law upon the bond, Murray could have filed a bill to compel a foreclosure as against Hugh Smith’s share, which would have been, in itself, substantially a foreclosure bill. The proceeding adopted was precisely to the same effect. (1 Evan’s Pothier, p. 412; 2 Comstock, 229, 231, 234; 2 Denio, 45, 61; 9 Paige, 454; 1 Cowen, 513, 539, 540 ; 17 Mass. R. 173.)
    3. The executor of Hugh Smith was bound to indemnify Murray against the balance due on the mortgage. He had a right to a credit by way of deduction, to the extent of the sum realized from the mortgaged premises; but the sum realized was the net proceeds of the mortgage sale, and not the gross proceeds thereof.
    VI. The plaintiff is entitled to judgment upon the verdict.
   By the Court. Bosworth, J.

This action was commenced prior to the enactment of the Code, and was tried in November, 1851. The questions presented to us for consideration arise upon a bill of exceptions taken at the trial, and are questions of law only. I am of opinion that the charge given to the jury was substantially unexceptionable, and that no error was committed at the trial, unless it was in refusing to nonsuit the plaintiff, or in the admission of evidence against the objection of the defendant.

An exception to the whole charge, and to each and every part thereof, is too broad, if any part of the charge be correct. It is the province of an exception to a charge at the trial to call the attention of the judge directly to the objectionable part, so that if there be error he may correct it at once. An exception to the whole charge is too broad, unless it is all wrong; and the addition of the words, “ and each part of it,” makes no difference. (Jones v. Osgood, Court of Appeals, April 16, 1850.)

The first question is, Was there sufficient evidence to justify submitting to the jury the question whether Hugh Smith made the promise stated in the second count of the declaration ? The testimony shows that on the 22d of October, 1835, at a public sale at the Merchants’ Exchange of a large number of Williamsburgh lots, the plaintiff purchased eight, as the highest bidder for the same, at prices amounting in the aggregate to $1,720.

By the terms of sale, ten per cent, of the purchase money was to be paid down, the balance on the 12th of November, when deeds were to be delivered to the purchaser, who was to have the privilege of giving his bond and mortgage for seventy per cent, of the purchase money, at one, two, or three years, at six per cent, interest.

Subsequently, but on what day does not expressly appear, Powers, the owner of the lots, executed and delivered to Murray a deed of them, dated Hot. 12, 1835, and received from Murray his bond, and also his mortgage of the same lots, conditioned to pay $1,204, on or before the 12th of Hovember, 1838, with interest semi-annually at six per cent.—the bond and mortgage both declaring that they were given to secure the payment of part of the consideration money expressed in the deed from Powers to Murray. The $1,204 was seventy per cent, "of such purchase money. The balance of such purchase, being $516, was in fact paid by Murray to Powers on the 7th of December, 1835. I deem the date of this payment a significant fact in connexion with other evidence given. Whether Powers delivered his deed to Murray, and took from the latter his bond and mortgage, before or on this day, does not expressly appear. If before, then those papers were exchanged before any part of the purchase money had been paid. For the $516, which included the ten per cent, payable on the day of sale, was not actually paid until the 7th of December. On the latter day, Murray executed and delivered to Hugh Smith a deed of an undivided half of the eight lots, which expresses its consideration to be $258, being precisely half of so much of the consideration as Murray that day paid to Powers. The deed conveyed to Smith an undivided half of the eight lots, “ subject to the one half part of a mortgage of $1,204, given by the said Peter Murray to William P. Powers, on the said lots, tlie_ 12th day of Hovember, 1835, with interest at six per cent, payable half-yearly.”

Smith and Murray were both present at the auction sale on the 22d of October, 1835, and stood near each other when the sale of the eight lots of ground was going on. Murray there stated to James Moore, in the presence of Smith, that Smith “ was joined with him in the purchasing of said lots of ground on that day.” Smith expressed no dissent to the truth of this remark. .

There can be no doubt that Moore speaks of a conversation had at this particular sale. The lots were sold by Mr. Franklin as auctioneer. Moore says Franklin was auctioneer at the sale of which he was testifying; that he himself bought in four lots, but did not complete his purchase; that he knows of no other sale in which Murray or Smith was concerned; and that both Smith and Hurray purchased at that sale. Powers says that Hoore bought four lots at that sale, but did not complete his purchase. I think the conversation of which Hoore testified took place at the time of the sale and purchase of the eight lots in question. It appears that Powers made a statement relative to this purchase, in the form of an account;

Debiting Hurray with the price . •. . $1,720
Crediting him with the amount of the bond
and mortgage.....1,204
Striking a “ balance to be paid ” of . . . $516

And also charging him for drawing the bond and mortgage, and the expenses of acknowledging and recording the latter, amounting to $7 124.

. There was evidence tending to show that this statement had been in the possession of Hugh Smith, and that he had written some figures thereon, but under what particular circumstances, or for what specific purpose, did not expressly appear.

It further appears that the deed from Hurray to Hugh Smith, although dated the 13th of December, was acknowledged, and the county clerk’s certificate of the official existence and signature of the person before whom it 'was made, was obtained on the 7th of December. They bear date on that day, and the deed was recorded on the 11th of December, two days prior to its date.

The subscribing witness to the deed testifies that he met the plaintiff and another gentleman in the street. Hurray said he wanted a man as a witness, and he went with them to the office of Judge Ingraham, and testified to the identity of Hurray. He saw no money paid at the time. This acknowledgment being made and certified, the certificate of the county clerk was obtained, and on the same day Hurray paid to Powers all of the consideration, except that secured by the bond and mortgage of Hurray. If in point of fact the bond and mortgage by Hurray to Powers, and the deed from him to Hurray, were not delivered before the thirty per cent, of the purchase money or any part of it was paid, then the evidence would be quite strong to show that the delivery of the deed from Powers to Murray, of the bond and mortgage of the latter to the former, and payment of $516-, the balance of the purchase-money, and the delivery of the 'deed from Murray to Smith, and payment by the latter of $258, half of the portion of the purchase money that day paid to Powers, were contemporaneous transactions. It will be borne in mind that the consideration expressed in the deed from Murray to Smith is just one half of the part of the consideration money advanced in cash to Powers, and that the deed is by its terms made “ subject to the one half part of the mortgage ” given upon the eight lots to secure the balance of the purchase money.

It seems to me that the evidence was sufficient to justify the jury in finding that these .lots were bought by Murray and Hugh Smith on joint' account; that Smith advanced one half of the $516 paid in cash, and took a deed of an undivided half of the lots thus bought on joint account, on a promise that he would pay one half of the unpaid part o’f the purchase money to the holder of the mortgage executed as security for the payment of it according to the terms of payment stipulated in the mortgage; that there was sufficient evidence, exclusive of any to result from the fact, that the deed by its terms conveyed the undivided half of the lots “subject to the one half part” of the mortgage.

The judge charged the jury that the deed from Murray to Smith imposed no obligation upon the latter to pay the one half part of the bond and mortgage. I do not understand the defendant to complain that this was not sufficiently favorable so far as the effect of the deed itself was concerned. Such a deed, executed sincé the Revised Statutes took effect, would not, alone and of itself, obligate the defendant to pay any part of such bond and mortgage. There is not any express promise to pay it found in the deed, nor any recital of the fact of such an agreement having been made contained in it.

1 R. S. 738, § 140, declares that “ no covenant shall be implied in any conveyance of real estate, whether such conveyance contain special covenants or not.” I assume that the fair meaning of this statute is that no" obligation, covenant, or promise to do or pay anything shall be implied against either party-to such conveyance, from the conveyance itself. If this he so, then it is obvious that the deed itself cannot per se be sufficient evidence of any promise not expressed in it to do or pay anything.

Though this be so, I think the law must be deemed to be settled in this state, that either party is at liberty to show for any purpose, except to prevent its operating as a valid and effective grant, that its consideration was different, greater, or larger than that named in it, and not wholly or at all pecuniary, in a suit by the vendor against the vendee to recover the actual consideration agreed to be paid, or in a suit brought by the vendee against the vendor on the covenants of seizin, or against incumbrances. (McCrea v. Purmont, 16 Wend. 460; Bingham v. Weiderwax, 1 Coms. 509; Haverly v. Becker, 4 Coms. 169.)

If the latter proposition be correct, then it follows that any evidence which legitimately tends to prove that the deed was executed and accepted-on a promise by Smith to pay half of the mortgage from Hurray to Powers was admissible. The opinion has been expressed that the evidence given was sufficient to justify the jury in finding that fact. If no improper evidence was admitted against the objection of the defendants, then the plaintiff is entitled to a judgment upon his verdict.

I do not think it follows that although the deed is not to be deemed of itself sufficient or any evidence of such a promise, therefore it is not to be admitted as evidence for any,purpose. It is admissible to prove the fact of the conveyance of the land, and what interest in it was conveyed. If it recited the fact that it was made upon a promise of Hugh Smith to pay a half part of the mortgage in question, then, on proof that he accepted the deed, and entered under it upon the premises conveyed by it, the deed might of itself be sufficient evidence of the making of the recited promise. (Torrey v. The Bank of Orleans, 9 Paige, 649, 658-9; S. C. 7 Hill, 260.)

The clause, “ subject to the one half part of the mortgage,” is possibly consistent with the idea that Hugh Smith bought the equity of redemption of an undivided half of the lots, subject to an incumbrance upon them to the extent of half the amount of the mortgage without any promise to pay it, and that it was the understanding of the parties that it was optional with him whether he would pay it, or allow the lots to be sold to pay it, and that Murray was willing to sell in that way, talcing the risk of the undivided half of the lots being at all times an ample security for the one-half of the mortgage which he was personally liable to pay. However this may be, the clause is certainly consistent with the fact, if not some evidence of the fact, that the deed was made, delivered, and accepted upon a promise of Smith to pay one half part of it.

There are cases which strongly favor the proposition that a deed containing such a clause as this, and executed under circumstances operating less strongly in aid- of it, is evidence of, and virtually expresses a_ promise to pay the mortgage or encumbrance subject to which it declares itself to have been made. (Wolveridge v. Steward, 9 Bing. 60, Bosanquet, J.; Minor v. Terry, &c. 6 How. P. R. 211; Jumel v. Jumel, 7 Paige, 549-595.)

But conceding that it was neither an express promise, nor of itself evidence of a promise, to pay the mortgage, still no error was committed in any instruction given to the jury respecting it. The jury were substantially told that the deed imposed no obligation on Smith to pay one half of the bond and mortgage.

The statute of frauds has no application to the case. It may be conceded that while the contract remained executory, it was not binding on either party, yet when it had become executed, by a conveyance to Smith of his interest in the joint purchase, upon his promise to pay half of the original contract price, the promise could be enforced. (Fish v. Dodge, 4 Coms. 307-311.)

It needs no citation of authorities to show that a vendor, who has conveyed to a purchaser real estate sold, may recover from him the consideration agreed to be paid for the land so sold and conveyed.

For the reasons that have -now been given, we all agree in the opinion that the motion for a new trial should be denied, if there was no error in the decision of the judge,—admitting as evidence the affidavit of Hugh Smith, the two letters from him to the plaintiff, and the letter of Mr, Pinckney to the plaintiff.

The affidavit was made in October, 1846, and showed that other land had been purchased of one Luther, in the name of Murray, on the joint account of himself and Hugh Smith; and that the latter was interested in such purchase to two thirds of its amount. It contained no allusion to . the purchase in question.

One of the two letters was dated the 13th of January, and the other the 3d of February, 1836. They do not allude to this transaction; but tend to show an intimacy in business transactions between the two, and that Mr. Pinckney acted as the legal adviser of Murray, as well as of Smith. , '

The letter from Mr. Pinckney to the plaintiff, according to its terms, inclosed some small bills alleged to be against the plaintiff and Hugh Smith, requesting payment the next day. There is no evidence that Smith saw or knew of the contents of this letter.

This evidence was objected to by the defendant, as being inadmissible for any purpose, and the decision of the judge admitting it was excepted to. The correctness of this decision is raised by a bill of exceptions.

' The plaintiff’s counsel does not contend that this evidence is admissible for the purpose of showing that the purchase in question was made on joint account, or that the deed to Smith was made on his promise to pay one half of the mortgage as a part of the consideration agreed to be paid for the land.

But it is contended that it was competent to show the situation of Murray and Smith towards each other, that they had had business transactions with each other of a similar character, not with a view to establish this to have been a joint transaction, or that the deed to Smith’was made and accepted on the promise alleged, but for the purpose of leaving the evidence tending to establish that the purchase was on joint account, and the making of the alleged promise, unimpaired in any respect by any such considerations, as that, if a joint purchase, it was, for aught that appeared, a transaction between entire strangers, and the only one that had ever occurred between them.

' On the other hand, it is insisted that the evidence was not admissible for any purpose; that it might have influenced the jury in coming to the conclusion that this was a joint transaction, and that, on a bill of exceptions, the court is not at liberty to speculate upon the question whether the other party was prejudiced by the admission of improper evidence admitted against his objection, but that if it has been thus admitted, he is entitled to a new trial as a matter of strict right.

In Marquand v. Webb (16 J. R. 90), an incompetent witness proved a fact, which was fully proved on the trial by two other witnesses. The court said that “ although the fact proved by him was proved by two other witnesses, we cannot say, the cause coming before us on a writ of error, that his evidence may be rejected as unnecessary.” On this ground a new trial was granted.

In Osgood v. Manhattan Co. (3 Cowen, 612, 618), in the court for the correction of errors, it was held, that if improper evidence be given in the court below, though it be merely cumulative, the judgment will be reversed.

The court said: It is well settled, that if improper evidence be given, although it be cumulative only, the judgment must be reversed: for we cannot say what effect such evidence may have had upon the minds of a jury.”

In Worrall v. Parmelee (1 Coms. 519), the declarations of Brower, from whom both parties claimed to have purchased the property in controversy, were proved on the part of the defendant, to the effect that he had sold the property to the defendant. The plaintiff objected to this evidence, and excepted to the decision admitting it.

The plaintiff, in a subsequent stage of the trial, called Brower as a witness in relation to the sale, and his evidence tended strongly to show that he had sold the property to the defendant prior to the time when the plaintiff claimed to have purchased it.

The court said: “ There are many cases which hold that an error in the court below, which, on its face and by legal necessity, could do no injury, is not cause for a reversal of the judgment. But where the error is in the admission of illegal evidence, which bears in the least degree on the question in issue, it cannot he disregarded.”

There are cases, in, which, although improper evidence was nearly admitted, the courts refused to interfere, on the ground that exclusive of such improper evidence, there appeared to he enough to sustain the verdict of the jury.

On examination, it will he found that those decisions were made in suits in which the question arose upon a case containing all the evidence, or in which the peculiar office of a hill of exceptions was inadvertently overlooked. (Cowen and Hill’s Notes, 787-8.)

The sole object and end of evidence is, to ascertain the truth of the several disputed facts or points in issue, on the one side or the other, and no evidence ought to be admitted to any other point. As it is a rule of pleading, that the issue should be on a material point, so it is an essential rule of evidence, that the proof should be material and relevant to the issue. (1 Stark. Ev. 169.)

If it be conceded, as I think it must be, that the affidavit and letters were not competent evidence to prove the truth of any issue, for the reason that they did not tend to prove it, it is difficult to specify any ground on which they could be admitted for any purpose. They were given in evidence before the plaintiff rested. They were not introduced to explain any fact proved or evidence given on the part of the defendant. If their admission as evidence can be sustained, it'must be for the reason that they are competent for the purpose of repelling some inference unfavorable to the plaintiff, which a jury might draw from his other evidence, or for the reason that they tend to prove some material issue. There is no ground for claiming the first part of the proposition to be true, unless the latter be also true. But they have no relation to the matters in controversy, and therefore are not admissible to aid in establishing the truth of the plaintiff’s case.

There is no intrinsic improbability that such a transaction occurred, as the plaintiff alleges. Whether it did or not, is a matter of proof. It does not' tend to establish the affirmative of the issue in this case, that another transaction of a like character had taken place between the parties, or that their business relations were intimate; nor can such evidence be given for the purpose of strengthening the evidence given to prove the alleged promise, or to divest it in any degree of any unsatisfactory features which it may possess, or of any unfavorable inferences, with which it may be supposed a jury may justly regard it.

I deem this evidence inadmissible for any purpose. And although I should not have felt at liberty to disturb the verdict, if this evidence had not been given, yet having been given against the objection of the defendant, and an exception having been taken to the decision admitting it, and the questions as to the admission of it being raised by a bill of exceptions, the court, according to the decisions cited, have no discretion to exercise, in determining whether a new trial should or should not be granted. Unless a discrimination can be made between this case, and the cases of Marquand v. Webb, Osgood v. The Manhattan Co., and Worrall v. Parmelee, the defendant would seem to be entitled to a new trial, as a matter of strict right.

The reason why the court will not always grant a new trial on a case, notwithstanding it appears improper evidence was given against the objection of the defeated party, and an exception taken to the decision admitting it, is, that a case is supposed to contain the whole evidence, and if the court of review is satisfied that substantial justice has been done, and that the verdict ought to, and would, have been the same, if the evidence excepted to had not been given, it will not disturb the verdict.

On the other hand, the theory of a bill of exceptions is, that it contains only so much of the evidence given as is necessary to properly raise the points sought to be reviewed on error, and therefore the court has not the means before it of accurately judging whether the objecting party may or may not have been prejudiced by the iinproper evidence, whose admission is complained of. It may, perhaps, be fairly claimed, that the bill of exceptions in this case contains all the evidence given. When the plaintiff rested, the defendant moved for a nonsuit on the ground, among others, “ that the evidence did not support either count in the declaration.”

A nonsuit was refused, and the decision of the court excepted to.

One of the points argued before us is, that the court decided erroneously in refusing to nonsuit. To properly presept tips ' question before us, it was indispensable that all the evidence given when the plaintiff rested, should be contained in the bill of exceptions. As it is drawn, it may be said, perhaps, that it purports to contain the whole of it, and also all that was subsequently given by the defendant. If it may be assumed that the bill of exceptions contains the whole evidence, then there would seem to be no good legal reason for not refusing a new trial on a bill of exceptions, if in the same case, and on precisely the same evidence, one would be refused on a case where the evidence was objected to, and the decision admitting it excepted to in the same manner in the one case as in the other.

Whether the court of last resort, to which an'appeal can be taken on questions of law only, will countenance a practice, which may create the necessity of incorporating in the record the whole evidence, and of reviewing it, in order to determine whether improper evidence may or not have prejudiced the rights of the party excepting to its admission, it is unnecessary to attempt to conjecture. Unless it will do that, I cannot resist the conclusion, that the exception to the admission of the evidence in question was well taken, and that a new trial should be granted.

My .brethren being of the opinion that under all the circumstances of this case, the verdict should not be set aside on account of the admission of this evidence, the motion for a new trial must be denied, and a judgment in the proper form entered in favor of the plaintiff on the verdict.  