
    [Lancaster,
    June 6, 1827.]
    CHRISTINE and another, for the use of CHRISTINE, against WHITEHILL.
    IN ERROR.
    
      It seema that the death of a party for whose use an action is brought in the name of another, is no reason for continuance, on the application of the representative of such party; but if the defendant objects to proceeding to trial, on the ground that there is no responsible party on the record, the court may, in the exercise of their discretion, continue the cause until such party is introduced.
    Such points, however, are not properly the subjects of a writ of error, and it must be a flagrant case, which would induce this court to interfere.
    In an action of covenant upon an alleged warranty of title, the. defendant may, as the first link in his defence, give in evidence a warrant granting the land, “provided it is not in our manor of Springettsbury,” notwithstanding the land does lie within the said manor.
    A paper purporting to be an exemplification of the record of an Orphans’ Court, stating that A. B. appeared and agreed to take certain lands at the appraisement, and containing the decree of the court assigning the said lands to him, without setting forth the other proceedings, and certified thus: “I certify, that the foregoing is a true copy taken from the original remaining in the office of the Orphans’ Court of —-county,” is not admissible in evidence.
    In an action founded upon a deed, a material part of the instrument cannot be contradicted or explained away by parol evidence, unless such part has been inserted through fraud or mistake. Nor can a deed be discharged by any declarations of the holder of it, as to what the deed does or does not' contain.
    But it seems that if the action were for deceit, in making a false assertion in the deed, the defendant might prove the circumstances under which the clause was introduced, independently of fraud or mistake.
    In an action of covenant to recover back the purchase money of land, in consequence of a defect of title, it is not competent to the plaintiff to prove, that he had contracted to sell the land, and that the person with whom the contract was made, refused to complete the purchase, on discovering the alleged defect of title.
    Where the plaintiff has been permitted, without objection, to give evidence, which in the existing state of the pleadings was liable to objection, he may, after the evidence on both sides is closed, and the argument commenced, amend his declaration so as to make it correspond with the evidence so given.
    
      Query, Whether the words grant and enfeoff, in a deed, amount to a general warranty.
    Any words in a deed, which show that a party asserted a thing to have been done, material to the contract, amount to a covenant that such thing has been done. Therefore, a recital in a deed, by the grantor, that the lands granted are part of a larger tract late the property of A. B. of, &c., deceased, which was decreed by an Orphans’ Court, of, See., held, &c., mito the grantor, one of the sons of the said A. B., deceased, and which the other heirs of the said A. B. did, by their deeds of release, grant and confirm to the said grantor, and to his heirs and assigns for ever, is a covenant that the grantor was seised of an estate in fee simple in the lands granted.
    Writ of error to the Court of Common Pleas of Lancaster county.
    
      George Christine and Andrew Gotwalt brought this action of covenant, in the court below, for the use of George Christine, against John M. Whitehill, and declared against him, as follows:—
    
      “John M. Whitehill, late of the county aforesaid, yeoman, was attached to answer George Christine and Andrew Gotwalt, who sue for the use of the said George Christine, of a plea that he keep wdth them his covenants, according to the force, form, and effect of a certain indenture between them made; whereupon the said George Christine and Andrew Gotwalt, by James Hopkins, their attorney, complain that on the 27th day of July, in the year of our Lord one thousand eight hundred and fourteen, at the county aforesaid, the said John M. Whitehill and Elizabeth his wife, by their certain indenture, bearing date the day and year aforesaid, which is now here shown to the court, amongst other things, in consideration of twelve hundred dollars lawful money of Pennsylvania, by the said George Christine and Andrew Gotwalt to the said John M. Whitehill and Elizabeth his wife, in hand paid, did grant, bargain, and sell, alien, enfeoff, release, and confirm to the said George Christine and Andrew Gotwalt, their heirs and assigns, a certain tract of land situate in Hellam township, in the county of York, by metes and bounds in the said indenture particularly described and set forth, containing ten acres neat measure, being part of the fifty-eight acres and one hundred perches, late the property of John Whitehill of Donegal township aforesaid, which was decreed by an Orphans’ Court of York county aforesaid, held the ISth day of September, 1812, unto John M. White-hill, (meaning the said John M. Whitehill, one of the sons of the said John Whitehill, deceased,) and which James Whitehill and others, the heirs of the said John Whitehill, deceased, did, by their deed of release, grant and confirm unto the said John M. Whitehill, (a party hereto,) and to his heirs and assigns for ever, to have and to hold the said ten acres of land, with the appurtenances, unto the said George Christine and Andrew Gotwalt, their heirs and assigns for ever, subject to the quit rent due thereon, or to become due to the proprietary, Mr. Penn and his heirs. And, further, the said John M. Whitehill and Elizabeth his wife, in and by the said indenture, amongst other things, did covenant, promise, grant, and agree to and with the said George Christine and Andrew Gotwalt, as follows, that is to say, “ And the said John M. Whitehill and Elizabeth his wife, for themselves, their heirs, executors, and administrators, did covenant, promise, grant, and agree, to and with the said George Christine and Andrew Gotwalt, their heirs and assigns, that they, the said John M. Whitehill and wife and their heirs, the said above described ten acres of lands, hereditaments and premises, hereby granted and released (or mentioned or intended so to be,) with the appurtenances, unto the said George Christine and Andrew Gotwalt, their heirs and assigns, against them the said John M. Whitehill, and Elizabeth his wife, and their heirs and assigns, and against all and every other person or persons whomsoever, lawfully claiming or to claim the said above described ten acres of land, Or any part thereof, shall and will warrant and for ever defend by these presents,” as by the said indenture fully and at large appears. And the said George and Andrew, afterwards, to wit, on the same day and year, entered into the possession of the said ten acres with the appurtenances, having paid and satisfied the said John M. Whitehill and Elizabeth his wife, the said twelve hundred dollars, as fully appears by his receipt duly executed therefor, by the said John M. Whitehill upon the said indenture. And the said John and Andrew aver, that on the day and at the time of executing the said indenture, to wit, on the Zlth of July, in the year of our Lord one thousand eight hundred and fourteen, or at any time before, neither he the said John M. Whitehill, nor his father, the said John Whitehill, deceased, had any lawful right or title to the said ten acres, or any part thereof, or property therein, or to or in the said fifty-eight acres, and one hundred perches of land, or any part thereof, represented, stated, and declared by the said John M. Whitehill in the said indenture to have been the property of his said father John M. Whitehill, deceased, at the time of his death, of which he the said John Whitehill, in and by the said indenture, represented, stated, and declared the said ten acres to be part, and that no lawful right or title ever was derived to the said John M. Whitehill from his said father, under or by virtue of the aforesaid decree of the said Orphans’ Court of York county, nor did the said James Whitehill and others, the heirs of the said John Whitehill, deceased, by their deed of release, grant and confirm unto the said John M. Whitehill, his heirs and assigns, the said ten acres with the appurtenances, or any part thereof^ as the said John M. Whitehill has represented, stated, and declared in the said indenture; but that, at the lime of the sealing and delivery of the said indenture, and at the time of the death of the said John White-hill, the lawful right and title to the said ten acres and the appurtenances, and to the said fifty-eight acres and one hundred perches of land were vested in John Penn and Richard Penn, late proprietaries of Pennsylvania, as part of their manor of Springettsbury in the said county of York. And so the said George and Andrew say, that the said John M. Whitehill fraudulently and deceitfully represented, stated, and declared, in the said indenture to the said George and Andrew, that the said ten acres of land, with its appurtenances, was the property of the said John White-hill, deceased, at the time of his death; that the said ten acres became vested in him and his heirs and assigns by the aforesaid decree, and the release of the said James Whitehill, and the other heirs of the said John Whitehill, deceased, when in truth and in fact no such right and title was vested in his said father, John Whitehill, or in the said John M. Whitehill, or in the said James Whitehill, and others the heirs of the said John Whitehill, 
      deceased, at the sealing and delivery of the said indenture, or at any time before, whereby the said John M. Whitehill hath not kept with them his covenants aforesaid, but hath broken them.
    "And the said George and Andrew further aver, that the said John M. Whitehill hath not kept and fulfilled his covenant of warranty aforesaid; but hath broken the same in this behalf, that at the time of the sealing and delivery of the said indenture he the said John M. Whitehill had no lawful right arid title to the said ten acres of land neat measure, with the appurtenances, nor was be lawfully seised in fee simple thereof, nor had he right or title to convey the same; but that the lawful right and title to the same, at the time of the execution of the said indenture, was vested in John Penn and Richard, Penn, who were lawfully seised in fee simple of the said ten acres, with the appurtenances, as part of their manor of Springettsbury, in the county of York aforesaid, and that the said John Penn and Richard Penn afterwards, to wit, on the first day of November, in the year of our Lord one thousand eight hundred and sixteen, entered into possession of the said ten acres of land, with the appurtenances, and evicted the said George and Andrew out of the same, and now lawfully hold the same in fee simple, and so the said George and Andrew say that the said John M. Whitehill hath- not performed his said covenants, but hath broken the same, to the damage of the said George and Andrew three thousand dollars, and therefore they bring suit,” &c.
    The defendant pleaded performance, with leave, &e., to which the plaintiffs replied that he did not perform, and issue.
    When the cause was called for trial, the death of George Christine, for whose use the suit was brought, was suggested, and no process having issued to make- his administrators parties, and they not having become so, his former counsel moved to continue the cause, on the ground that there were no parties to the suit. But the court being of opinion that while Andrew Gotwalt was living there was a plaintiff who was a party to the suit, decided- that the death of George Christine was no cause for a continuance. This decision was the basis of the first bill of exceptions.
    After the jury had been sworn, the plaintiff gave in evidence a deed bearing date the 27th of July, 1814, from John M. White-hill to George Christine and Andrew Gotwalt, the material parts of which were in these words:—
    
      “ Witnesseth, that John M. Whitehill and wife, in consideration of twelve hundred dollars, have granted, bargained, and áold, aliened, enfeoffed, released, and confirmed, and do grant, bargain, and sell, alien, enfeoff, release, and confirm to George Christine, and Andrew Gotwalt, and to their heirs and assigns, all the following described piece or parcel of land, situate and being in Hellam township, and bounded and limited as follows: — Beginning at a rock at the river Susquehannah, thence, south, &c. to the place of beginning, containing ten acres neat measure, being part of the fifty-eight acres and one hundred perches of land, late the property of John Whitehiil, of Donegal township aforesaid, deceased, which was decreed by an Orphans’ Court of York county aforesaid, held the 15th of September, 1S12, unto John M. White-hill, a party hereto, one of the sons of the said John Whitehiil, deceased, and which James Whitehiil and others, the heirs of the said John Whitehiil, deceased, did by their deed of release, grant and confirm unto the said John M. Whitehiil, a party hereto, and to his heirs and assigns for ever.”
    The plaintiffs then gave in evidence the warrant to survey the manor of Springettsbury, dated the 21st of May, 1762, and the return of the survey thereon, dated the 12th of July, 1768, and proved that the land described by the deed, lay within the said manor. The plaintiffs having given notice to the defendant to produce a deed from the proprietaries or ownérs of the manor of Springettsbury, to himself, he produced one dated the 19th of July, 1822, from John and William Penn, to Jacob Strichler and John M. Whitehiil, for a tract of land, including the ten acres which were the subject of the present controversy. The plaintiffs having read the last-mentioned deed to the jury, rested their case.
    The defendant then, for the purpose of showing a good title in himself when he conveyed to the plaintiffs, offered in evidence a warrant to James Bailey, dated the 15th of April, 1763, for a tract of land, including that which the deed of the 27th of July, 1814, given in evidence by the plaintiffs, purported to convey, together with the survey made thereon, dated the 25th of the same month. The warrant granted the land to which it referred, “ provided it is not within our manor of Springettsbury:” on this ground the plaintiffs’ counsel objected to the evidence offered. The objection, however, was overruled by the court, to whose opinion the defendant’s counsel excepted.
    After having shown title in John Whitehiil, the father of the defendant, derived under the above-mentioned warrant to James Bailey, the defendant offered in evidence an exemplification of the record of the Orphans’ Court of York county, dated the 15th of September, 1812. This paper did not set out the proceedings of the Orphans’ Court, but merely stated that John M. Whitehiil appeared and agreed to take certain lands at the appraisement, and contained the decree of the court, assigning those lands to him. It was certified thus: “ I certify that the foregoing is a true copy, taken from the original record remaining in the office of the clerk of the Orphans’ Court of York county.” The court admitted the paper in evidence, though objected to by the counsel of the plaintiffs, at whose request another bill of exceptions was sealed.
    The defendant proposed to prove, by William Childs, who drew the deed of the 27th of July, 1814, that when applied to for that purpose, John M. Whitehiil and George Christine alone were present: that Mr. Whitehiil said, “ I have not the releases from my brothers and sisters, but will obtain them in a very short time.” Christine said he was satisfied. Mr. Whitehill was sufficient to him. I believe I made the remark that if Mr. White-hill was certain of obtaining them in a short time, I would insert it in the deed that they were obtained. It was' agreed by them both that I should. Mr. Christine then remarked, he must have a warranty ’title.
    The defendant further offered to prove, by John Smith, that in 1814, John Smith told him, that Mr. Whitehill had not got the releases at the time the title was made, but he was to get them shortly, as soon as he could conveniently obtain them; but observed that Mr. Whitehill was always good enough to him. The testimony of both these witnesses was objected to by the plaintiffs’ counsel, but the court received it, and an exception was taken.
    Evidence was then offered by the plaintiffs, that on the 30th of November, 1S16, George Christine had made an agreement to sell the land conveyed to himself and Andrew Gotwalt, but that the person with whom the agreement was made, on discovering that his title was good for nothing, refused to complete the contract. The counsel of the defendant objected to the evidence, and the court having rejected it, another bill of exceptions was tendered by the plaintiffs and sealed by the court.
    The evidence on both sides being closed, one of the counsel for the defendant began to address the jury. In the course of his argument, he contended that the breaches assigned in the declaration having stated that the title to the manor of Springettsbury was in John and Richard Penn, and it appearing from the deed of the 19th of July, 1822, to Jacob Strickler and John M. White-hill, given in evidence by the plaintiffs, that the title was in John and William Penn, the evidence did not correspond with the declaration, and consequently the plaintiffs could not recover. The plaintiffs’ counsel thereupon made to the court a motion in the following form: — “The defendant having been regularly notified to produce the title he obtained for the lands in dispute from the proprietaries of the manor of Springetlsbury, and having withheld the same until it was fully established that he had the same in his possession, and, on the production of the same, it appearing that John and William Penn are the proprietaries of the manor, and not John and Richard Penn, as stated in the declaration, the plaintiffs move, after one of the defendant’s counsel had begun to address the jury, to change the name of Richard, where it occurs in the declaration, to WilliamThis motion was opposed on the part of the defendant, and the court refused to permit the amendment to be made; upon which the plaintiffs’ counsel took another exception.
    Several legal propositions were submitted by the counsel on both sides to the court, who delivered to the jury a charge, of which the following parts are material:—
    
      <£I have already stated the opinion of the court, that neither John Whitehill the father, nor John M. Whitehill the son, had any title to the lands conveyed. And it appears in testimony that no releases were executed at the- time of the conveyance, by the heirs of John Whitehill; and the question is, whether under these circumstances there is any thing in the deed which will warrant an action of covenant.
    44 We have all listened with great attention to the elaborate and ingenious arguments delivered on both sides of this question; I have given it all the consideration it deserves, and it is my opinion, after full deliberation, that the deed of the 27th of July, 1814, doth not contain an agreement or covenant, that the title in fee simple was vested in John Whitehill at his death, and on that event descended to John M. Whitehill, the defendant, and his brothers and sisters, and that upon an appraisement under the intestate law it was decreed to him and his heirs by the Orphans’ Court of York county. All this is stated in the deed, but notin such terms as amount to a covenant, on which an action can be sustained. It is not stated in the declaration as a covenant. There is no covenant in the deed, that the defendant or his father was seised of an indefeasible title, and therefore there is no covenant to warrant the breaches assigned in the declaration. Admitting the truth of the allegations in the first count, they would not form the subject of an action of covenant; but might probably be a good ground for an action on the case for deceit.
    44 The facts stated in the several counts, are, that John M. Whitehill, at the time he made the deed, had no title to the ten acres, nor any right to convey the same. 2dly, That the lawful right and title to the same, at the time of the execution of the deed, were vested in John and Richard Penn, or the proprietor of the manor of Springettsburg; and, 3dly, That John and Richard Penn entered into possession of the ten acres, with the appurtenances, and evicted the said George Christine and JLndrew Gotwalt out of the same.
    44 To entitle the plaintiffs to recover, they must prove each of their allegations — they have proved the title not to be in the defendant, but as they have alleged that the property in dispute was owned by John and Richard Penn, it is necessary for the plaintiffs to prove it, and proof that the property belonged to any other person will not be sufficient.
    44 It must be proved also, on behalf of the plaintiffs, that they were actually evicted under the paramount title stated in the declaration, as vested in John and Richard Penn. The warranty is not broken without an eviction, and the eviction is alleged in the declaration, and must be proved. It is true that the evidence of the paramount title stated in the declaration, and that the plaintiffs in consequence, yielded up the possession to such title, would be sufficient, and would support the allegation of eviction; for the law does not require, in the language of one of the judges of the Supreme Court, the idle and expensive ceremony of being turned out by legal process whén that result would be inevitable.”
    
      Hopkins, for the plaintiffs in error,
    cited, 9 Serg. & Rawle, 22. 2 Selw. N. P. 39. Sugd. on Vend. 260. 3 Johns. R. 45. Bull. N. P. 156. 2 Freem, 3. Powell on Cont. 237. Fromberger v. Bender, 4 Dall. 444, 446. Funk v. Voneida, 11 Serg. & Rawle, 364. 4 Mass. R. 349.
    
      Rogers and Jenkins, contra,
    
    cited, Edmiston v. Swartz, 13 Serg. & Rawle, 135. Voris v. Smith, 13 Serg. & Rawle, 334. 5 Serg. & Rawle, 382. 8 Mass. R. 201. 7 Mass. R. 261. 1 Esp. N. P. 267, 268. 7 Johns. R. 258. 11 Johns. R. 122. 2 Caines’ R. 192. M‘Kay v. Brownfield, 13 Serg. & Rawle, 239. Whart. Dig. 253. pl. 382.
   Huston, J.

This was an action of covenant brought by the plaintiffs in error, against the defendant in error, and affords a striking example of the pertinacity with which every point of law and of practice is now contested in this state. The fact that we have no Court of Chancery, and that the powers of such a court are exercised by a court and jury, is well known, and has been the subject of much remark. I do not consider it a defect in our judicial system — nay, if the power of granting injunctions, of sustaining a bill for discovery, and of directing specific performance, at the same time imposing proper terms on the other party, were granted to our courts, I would say our system is preferable to that of England, or of those states where the two courts are kept distinct. I am aware, however, that in' practice some difficulties occur; that the proper mode of proceeding remains to'be settled in some instances. The assignee of a bond, can by act of assembly support suit in his own name, where the assignment is evidenced by two witnesses. In most other cases where a right is transferred, the suit is by the assignor for use of assignee. Here we call the assignor the legal party on the record; but he is not the real party for almost any purpose. He cannot release or discontinue the action— is not liable for costs — is not the proper person on whom to serve notice to take depositions, or other notices in the', cause: in short, he is the formal, though not the real plaintiff. The.practice has been, perhaps, as was pursued in this case, to consider the death of the person for whose use suit was brought, as not a reason of continuing the cause. The legal parties being in full lifej the trial has been considered regular. ■ If, however, the defendant had objected to the trial proceeding, until the representatives of Christine were substituted, if the defendant had objected that he had no party on whom to serve notice, no party against whom he’could issue execution for costs, a judge would exercise a sound-discretion in continuing the cause until such party was put on the record. The fact is, that this and such points are not properly the subject of a writ of error, and it must be a flagrant case — a great and final injury to the party, or this court would not reverse, even if they might incline to the opinion that the judge ought to have acted otherwise. By our practice, the plaintiffs might, on motion, have substituted the legal representatives of Christine instantly.

The plaintiffs, gave in evidence a deed from the defendant to Christine and Gotwalt, dated the 27th of July, 1814, (on this deed the principal question arose,) and proceeded to show title in John and Richard Penn. Richard’s part had become vested in William Penn, and having given notice to the defendant, he produced it, The plaintiffs read a deed from John and William Penn, to Jacob Strickler, and the defendant, John M. Whitehall, in fee, dated the 19th of July, 1822, and rested his cause.

The defendant then offered in evidence a warrant to James Bailey, dated the 15th of April, 1763, and return of survey thereon, under seal of office, alleging that he would deduce title under it, * and that it was a good title. The plaintiffs objected to this warrant and survey being received in evidence, because the warrant expressly grants the land, “provided it is not within our manor of Springettsbury.” If the defendant had admitted that the land lay within that manor, that neither possession nor any other fact had occurred since the date of the warrant on which he meant, to rely; in short, had admitted that the validity of that warrant must depend on whether it gave title to lands within the manor the day it issued, or the day it was returned, — the court might have been right in rejecting it; for clearly, if evidence will not avail the party, it ought not to be received: but the validity of the title under it might depend on so many occurrences since its date, that it ought to have been received as the first link in a defence, and its effect would depend on what was afterwards proved'. There was then no error in this.

After deducing title from James Bailey to tho defendant’s father, the defendant offered in evidence what he called an exemplification of the records of the Orphans’ Court of York county. The paper purports to be the record of the proceedings of the Orphans’ Court of York county, at a court held on the 15th of September, 1812. It begins by stating what had been done at a former court, and contains only that John M. Whitehill appeared and agreed to take certain lands at the appraisement, and the decree of the court assigning them to him, &e. There is no mention of a petition, much less a copy of it; no award of inquisition, nor no inquisition. The certificate is in these words: “I certify that the foregoing is a true copy taken from the original record, remaining in the office of the clerk of the Orphans’ Court of York county.” The two cases of Edmiston v. Swartz, and Voris v. Smith and Wife, in 13 Serg. Rawle, have put the admissibility of a record expressly on the certificate. I agree entirely with those opinions, but I would wish the certificates and the state of the records offered had been expressly given; for an opinion is often, if not always, referrible to the case in which it is delivered. In the first case, it appears the certificate stated it to be a true copy taken from the records, and had the words, “so fully and entire as it remained in the court,” and I know the last had the same words. Our records are never made up in one roll. A narr — an execution — or inquisition is sometimes not found, when the record of an old suit is searched for, and we must take what we have. Neither of those purported to be the proceedings of the court at a single session or term. In the case before ús, we know the petition must be presented at one term or session of the court. The inquest, if then awarded, cannot be returned until the next stated Orphans’ Court, and the heirs are then notified to appear, and accept or refuse at a succeeding court — here ne have only the proceedings at this third court, and nothing from which we can suppose the previous proceedings are not all in existence; if lost, and the officer would certify what he had, and add, that this was a copy of the records of the Orphans’ Court, in that case, “so full and entire as in his office they remained,” I would receive it, and it might or might not avail the party, as though it was entire. Here is no such thing: it is a copy taken from the record, and purports only to contain the decree, without the premises, or what had been done at previous courts. I am of opinion it was improperly received. The counsel who are to produce a record, ought always to examine it; and, if any part is wanting, to see that the certificate states it to contain all that now is in the office. This point was expressly decided in Hampton v. Speckenagle, 9 Serg. & Rawle, 221,

The defendant then called William Childs, the scrivener who drew the deed, and offered to prove, that when he was applied to, to draw the deed, John M Whitehill and Christine, and no other persons, were present. That Mr. Whitehill said, “ 1 have not the releases from my brothers and sisters, but will obtain them in a very short time.” Christine said he was satisfied. Mr. Whitehill was sufficient to him. “ I believe I made the remark, that if Mr. Whitehill was certain of obtaining them in a short time, I would insert it in the deed that they were obtained. It was agreed by them both that I should. Mr. Christine then remarked, he must have a warranty title.”

The deed which had been given in evidence contained, in the clause which will be hereafter given at length, these words: “And which James Whitehill and others, the heirs of the said John Whitehill, did, by their deed of release, grant and confirm unto the said John M. Whitehill, party hereto, and his heirs and assigns for ever.” The plaintiffs objected to this parol evidence, as being directly contrary to, and going to destroy a material part of the deed. The court admitted the evidence, on the ground it is said, that whatever is stated by the parties at the time of execution of a deed is evidence, or, perhaps, on the ground of fraud in the plaintiffs in now relying on that clause. We have certainly gone further than any other court in the admission of parol evidence. Our reports are full of expressions of regret at this, and we find not a few promises not to go further. In fact, we are now at a period when the most material covenant in a deed would be one that,neither party should attempt by parol evidence to vary the written contract. This testimony goes not to add something omitted by mistake, or substract something consistently with the deed, but to desiroy the most important part of the instrument. It might as well be permitted to swear away the fee simple and reduce it. to a conveyance' for life I have said this, on the supposition that it has the effect intended by him who offered it; but, as there was an exception to the opinion of the court on the effect of it, I shall consider that with the other point. Christine only said Mr. Whitehill was sufficient to him — he must have a warranty; and he said this, when speaking of what title existed in Whitehill at the time. He did not suggest the mode of warranty, nor the manner in which the scrivener should bind Whitehill; that was left to the scrivener. The mode proposed did bind Mr. Whitehill; and, if he objected to the mode, he ought to have said so, and the scrivener would have adopted some other. Whitehill agreed to, and signed it.

Most clearly a material part of any deed or writing cannot be contradicted nor explained away by parol, even in Pennsylvania, unless in cases of fraudulent insertion of it, or mistake. This case proves no fraud nor no mistake in Christine; he must have Mr. Whitehill bound, a warranty. Whitehill agreed to be bound— strike out this, and he is not bound: there is no warranty of title in him. The precise point came before the Supreme Court of Massachusetts, in'th'e case of Townsend v. Weld, 8 Mass, Hep. 146. The evidence was rejected at the trial, and the court say this is an attempt to control the effect of a written and sealed instrument by parol .evidence, which cannot be permitted. Supposing the incumbrance known, it was still competent to the defendant to covenant with his grantee to save him harmless from its effects; and, if such was hot his intention, he should have excepted it. There was error then, in admitting this testimony. If the plaintiffs had brought an action for deceit, in making a false assertion, this evidence might be admissible, but to relieve the defendant from his deed it was not evidence.

The next was an offer to prove, by Smith, what Christine told him; viz.' that Whitehill had not the releases when the deed was given, but was to get them soon, and that Mr.' Whitehill was good enough to him for them. I repeat, if the objeet of the suit were to affect Whitehill barely for a fraud, in inserting a falsehood in his deed, this'might be evidence; It is true, what a party to a suit says, is generally evidence against him; but, where a deed is produced in court as the ground of an action, it never can be destroyed by any declaration of the holder of the deed, as to what is or is not in it. Such evidence might destroy the effect of any deed; but even this evidence did not tend to destroy the effect of this clause; it went to show that Mr. Whitehill was bound to Christine, and that Christine relied on that.

The plaintiffs offered to show that they had sold the property, by article of agreement, and the purchaser refused to complete the purchase on discovering this defect in the title. The court rejected this, and rightly. This suit was instituted for the purpose of recovering the whole purchase money and interest, on account of defect of title. If it had .been for damages, because White-hill had delayed to complete the title under the clause for further assurances, perhaps this evidence might have been given. The defendant held, and had only produced, after proof of notice to produce it, and proof that such a deed existed, a conveyance dated the 19th of July, 1822, from the proprietaries of Springettsbury manor to himself and Jacob Strickler for lands, including that which he had before sold to the plaintiffs. The plaintiffs, in one of their breaches of covenant, had stated an older and better title in John and Richard Penn. When the defendant produced the deed above-mentioned, it was read by the plaintiffs without any objection; and by this deed it appeared that at the time White-hill sold to the plaintiffs, the title was in John and William Penn, and since the institution of this suit, had become vested in John M. Whitehill, the defendant, and Jacob Strickler. After the testimony was closed, the defendant’s counsel made the point before the court that the plaintiffs could not recover on this breach, as the evidence did not correspond with the narr, or support it. The plaintiffs then moved to amend, by inserting William instead of Richard Penn. The defendant objected, and the court refused to permit the amendment, because the testimony was closed. The words of the act of assembly, the act of the 21st of March, 1806, section sixth, are, The plaintiff may amend his declaration or statement, and the defendant may alter his plea or defence, on or before the trial of the cause.” Now, if after testimony closed, and argument commenced, the defendant should offer to alter his plea so as to introduce new evidence, and this after the plaintiff’s witnesses were dismissed, a court would be right in rejecting it; but the evidence had been received, and received without objection. I would not suspect the defendant’s counsel in this case, but it has happened that counsel have admitted evidence clearly objectionable on the present state of pleadings in a cause, and aware that it was so, with the intent to object in a later stage. If the objection had been made when this testimony was offered, clearly the plaintiffs might have amended, it was a clerical error. In this case the amendment ought to have been permitted.

I now come to the main point in the cause. The deed stated that The said John M. Whitehill and wife, in consideration of one thousand two hundred dollars, to them paid, granted, bargained and sold, aliened, infeoffed, released, and confirmed, and do grant, &c. (repeating the same words) to George Christine and ,Andrew Gotwalt, and to their heirs and assigns, all the following described tract of land, (describing it by courses and distances) containing ten acres neat measure, being part of fifty-eight acres and one hundred perches of land, late the property of John White-hill of Donegal township, deceased, which was decreed by an Orphans’ Court of York county, aforesaid, held the 15th of September, 1812, unto the said John M. Whitehill, party hereto, one of the sons of John Whitehill, deceased, and which James Whitehill and others, the heirs of the said John Whitehill, deceased, did, by their deed of release, grant and confirm to the said John M. White-hill, and to his heirs and assigns for ever.”

The deed contained also a clause of general warranty against all persons claiming the same.

The judge, after stating distinctly that neither John Whitehill, the father, nor John M. Whitehill, the son, had any title to the lands conveyed, was of opinion that this deed did not contain any agreement or covenant that John Whitehill, deceased, was seised in fee, which descended to the defendant and his brothers and sisters, and which was decreed to him in fee by the Orphans’ Court in York county, and was released and confirmed by bis brothers and sisters in fee. He says all that is stated, but not in such terms as to amount to a covenant on which an action can be sustained. He says, further, admitting the truth of the allegations in the first count, they would not form the subject of an action of covenant, but might probably be a good ground for an action on the case for deceit.

A wide range has been taken in the discussion of this cause and the operation of the words grant, bargain, and sell, by the act of 1715, has been discussed. I shall not at this time notice that act further than to say, that although it was not supposed to have exactly the meaning now given to it for near a century after its enactment, yet I am disposed to assent to that construction. A judicial construction which has not been questioned for twenty years, ought to be left untouched by the judiciary. To alter it now by a decision would have all the bad effects of a retrospective law, and would leave the matter liable to be again altered by subsequent judges. I am not sure, however, that the defendant would not be liable on this deed, and the facts in the cause, under any construction which has been given to that law.

The operation of the words grant, and infeoff, has also been agitated, and it has been supposed the case in 2 Caines, 188, and Co. Litt. and the cases there cited prove that neither, nor both of those words, ever imported a warranty. Without going into that question, I would surmise, that Littleton, in the place there quoted, was speaking of the old warranty — warrantia charlee, which was essentially different from the modern covenant of vyarranty, and that perhaps it will be found that Lord Coke, in all the places there cited, was treating of the same species of warranty, and which is now out of use in England. The effect of those words, as importing warranty, and giving the action of covenant, Lord Coke, I think, has no where discussed. The learned judge, in that case, says he has found nothing to contradict the opinion he there gave, except a dictum of Lord Eldon, in Browning v. Wright, 2 Bos. & Pull. 21: it is not a dictum, but the foundation of the whole decision. Buller, Justice, in the same case, says expressly, the words grant and infeoff, amount to a general warranty in law, and have the same force and effect. And it has always appeared to me, that the covenants of special warranty, as they are called, have no meaning, unless inserted after, and to restrain a general warranty express or implied. I can understand why, if I have inserted in my deed an assertion of title in fee, I should add a clause, that I did not mean to warrant that title, except against my own acts. But where I have not stated or alleged a seisin in fee in myself, either directly or by words of that import, a covenant that I will only warrant my seisin in fee against my own acts, is to my mind, mere unmeaning jargon. Judge Kent might, with a small part of his usual industry, have found the opinion of Eldon and Buller was the opinion of many other and great judges. In Man v. Ward, 2 Atk. 228, there is an express decision of Lord Hardwicke, that the words grant and convey are a warranty. The opinion of these three, (all great judges,) I oppose to the New York case, and so leave this point as not yet quite settled in my mind.

A covenant does not require any express words — neither the word agree nor the word covenant, nor any other set word or phrase is necessary to constitute a covenant. It may as vvell relate to things past and done as to things future and to be done, and any words which show that the party asserted that a matter material to the contract had been done, amount in a deed to a covenant that it has been done. Shepherd’s Touchstone, Covenant,p. 160, 161, 162. Com. Dig. Covenant, a. 2, passim. Com. Dig. Covenant, p. 268, If a lease for the lives of A., B., and C. is assigned with a covenant that he has a good estate during the lives of A., B., and C., and they are yet alive, though he does not say and that they are yet alive, yet the assertion is a distinct covenant, of which it will be a breach, if any of them be dead. I consider the clause above cited as an assertion by John M. Whitehill, that he was seised in fee, which came to him in the manner stated! It is contended that it is mere description of the land, or merely a recital; but the county, township, corners and courses, and distances, are the description of the land, and the clause “from part of,” &c., to the end, if descriptive at all, are a description of the title. But a a false description may avoid the deed, and give covenant against

the grantor; it may be descriptive, and an assertion of title also. A recital may and often does import a warranty. Poto, on Contracts, 143. 1 Leon. 122. Severn v. Clerke, there cited is in point. ;The objection was taken that it commenced “ whereas,” &e. but it was held it-was an agreement — for every thing contained in a deed was an agreement: as if a man recited by his deed that he was possessed of a certain interest in certain land, and transferred that interest; if he were not possessed of such interest the covenant would be broken. The same point is directly decided, Johnston v. Proctor, Yelverton, 175, where the grantor recited that he was entitled to the whole of the property, when in fact he had title to only one half, and warranted for quiet enjoyment, notwithstanding any act done by him: the grantee was evicted of a moiety, and brought covenant; and the court held the recital was a warranty; and these cases have never been questioned in England, and are at this day good law. And they ought never to be questioned any where; they accord with the universal principle that the statement of fact, material in the contract, and which is not true, avoids the contract, and gives action to the party injured; and if the false assertion is in a deed, covenant is the action. John M. Whitehill stated in his deed that a title in fee simple for the land he was conveying, was vested in him. This assertion must have been the inducement to the purchase — it brought to Whitehill twelve hundred dollars. It is in law, and in common sense and justice, to be taken as an engagement by deed that he had an estate in fee, and he shall not escape by calling it by this or that technical name; for call if what he will, if it is a statement of a material fact, and was not true, he is liable to an action of covenant, and the plaintiff may recover on it. Much has been said on the construction of covenants. The only rule in our times is to give them that construction meant by the parties, and not to render any part inoperative, unless where they are directly contradictory. It is said the covenant of general warranty against all persons, absorbs and extinauishes the implied covenant from the recital or assertion. I believe no authority can be found for this. An express limited covenant on the same matter may restrain a previous implied general covenant, for ezpressum facit cessare taciturn. This, however, only happens where they apply to the same matter; but an express general covenant on the same subject does not extinguish an implied covenant of the same subject, and the party may sue on the one or the other; but in this case the implied and the express covenants are not the same, do not relate to the same matter, and one may be broken (the implied covenant of title) the moment the deed was executed, and the other not until the party is ousted; they are no way inconsistent, and may both well stand and have effect. 4 Co. SI. Noke’scase. Shepherd’s Touchstone, Covenant, 165. Com. Dig. Covenant, D. 4.

Gibson, C. J.

I regret that in some respects I am compelled to dissent from the opinion just delivered. A recital may, undoubtedly, amount to a covenant, although that is by no means a necessary consequence. Mr. Powell, in a note to his edition of Wood’s Conveyancing, (202) takes a distinction between the recital of a fact, and the recital of a deed; the former being the foundation of an action of covenant, or a decree of specific performance, and the latter, when untrue, being void, as a reference to nothing; and the eases which he cites bear him out. The foundation of the distinction, I take to be the intention of the parties, the recital being an agreement or not, just as the grantor may be supposed to affirm the existence of a fact, and pledge himself for the truth of it. Accordingly, a recital which is only matter of description, does not, under any circumstances, become a covenant, as where the quantity of the land is mentioned, in addition to the boundaries. Powel v. Claris, (5 Mass. II. 355.) What is the nature of the recital in the case before us? The defendant conveys to the plaintiff and another since dead, “ the following described piece or parcel of land, situate, and being in Hellam township, York county, bounded and limited as follows: Beginning at a rock at the Susquehannah, thence south, and to the place of beginning, containing ten acres neat measure.” Now this, without more, would have been altogether vague and uncertain; the name of the township and county, and the indefinite object mentioned as the place of beginning,'-having ascertained nothing. But when the tract is further described, as part of 58 acres late the property of John Whitehill which were decreed to him by the Orphans’ Court of York county, and which James Whitehill and others, the heirs of John, by their deed of release, had confirmed to the defendant, the'tract may be identified with certainty. Then the matter comes to this: Did the defendant use these terms to define the subject of the grant, or to assert that he was seised of an indefeasible estate in fee simple? Of his actual meaning I cannot bring myself to doubt. Under any natural or reasonable construction the words do not import an assertion, and the necessary conclusion of fact can be reached, if at all, only by inference and a chain of consequences, as a foundation for a further inference by implication of law, which I submit is much too remote. ' In transactions of this sort, such a construction would defeat the intention of the parties in ninety-nine cases in a hundred, and in so many cases would the grantor find himself implicated in covenants to which he never dreamt of becoming a party. There is so much practical good sense — so much that comes home to every man’s business and bosom — in the opinion of Livingston, J., in Frost v. Raymond, (2 Caines’ Rep. 196,) that I cannot resist a desire to extract the following passage from it: “Nor is there,” says he, “any thing hard or inequitable in denying to the word grant, and to- all the others here used, a sense which ex vi termini no one of them imports, and which it is a hundred to one, was. not contemplated by either party. In conveyances of real estate, there must always be danger in implying any thing that is not stipulated in clear and precise terms. This is the safest way of determining the extent of the grantor’s responsibility. Whether he is to defend the property against particular incumbrances, or against those who claim under him, or against all the world, ought not to depend on the equivocal or ambiguous meaning of terms used in the granting clause, but on plain and express covenants, which are now therefore uniformly inserted, where it is intended to render the grantor or his heirs liable, in case of eviction or defect of title.”

But, were all this otherwise, still, where the parties have particularly designated what they understood to be the extent of their liability, the law will not by implication carry it further. And this rests not merely on its own intrinsic and unquestionable good sense, but also on unquestionable authority. Mr. Butler gives it (Co. Lit. 384, a. note, 333,) as the result of the English decisions; and Cruise, (Dig. Tit. Deed, ch. v. sect. 11,) says an express covenant will qualify the generality of an implied covenant, so that it shall not extend further than the express covenant; and for this he cites Noke’s Case, 4 Rep. 80, b., 1 Mod. 113, and 1 Ves. 101; and these again are fortified by the decisions of the Supreme Court of New York. It is true, that in Noke’s Case, Lord Coke remarks, that an implied and express warranty may exist together, if both be general. Undoubtedly they may, and so may any other covenants, which are generically, and specifically the same, and which, consequently, produce the same measure of responsibility. But, where the parties insert a covenant of special warranty, the law will not imply a general warranty, because the latter is inconsistent with the former, and would carry the liability of the grantor further than the point of limitation affixed to it by the parties themselves. This is all that is meant by the dictum in Gales v. Caldwell, (7 Mass. 68,) that there may be implied covenants, where they are not inconsistent with those in the deed: in other words, that they may stand together when they mean exactly the same thing. But it may safely be affirmed, that no case can be found, in which a covenant has been implied that created a new responsibility, or increased an existing one; as must necessarily happen here, by implying a covenant of seisin, where the grantee has only thought proper to stipulate for a general warranty. In Noke’s Case, the implied covenant was different from the express covenant in degree, being larger, and here it is different in kind; but there is the same discrepance in each, and the same room for the covenantor to say, non in hsec federa veni. I am of opinion, therefore, that the plaintiff could maintain an action on this deed only for a breach of the warranty; but I concur on all the other points.

Duncan, J.

On the construction of the conveyance as to the effect of the recital by the grantor of his title, in which the Chief Justice, and my brother Huston disagree, I agree to the construction of the latter. This is not a matter of description of the quantity of the estate, as to its boundaries, but of the quality and nature of the title — a description of the title by which he held it, and is a covenant that he held that title, and is not controlled by the covenant of general warranty.

Rogers, J., did not sit during the argument, and gave no opinion.

Judgment reversed, and a venire facias de novo awarded.  