
    [Sunbury,
    June 15, 1829.]
    SEITZINGER, Administrator of STROHECKER, for the use of DRINKEL, Administrator of GARVER, against WEAVER, Administrator of GRANT.
    APPEAL.
    The covenants raised by the words grant, bargain, and sell, by force of the act of assembly of the 28th of-May, 1715,- are not applicable aloné .to deeds executed, but extend to articles of agreement for the conveyance of land. " ■
    The words grant, bargain, and sell, do not create a covenant of-special warranty, running with the land and broken only by eviction. The act intended to give to the vendee the benefit of two distinct' covenants; a covenant of seisin as regards defeasibility from the acts of the vendor, and a covenant for quiet enjoyment against disturbance by the vendor, and those claiming under him; and the covenant of seisin is broken by the existence of an incumbrance created by the vendor, the instant it is sealed and delivered.
    The previous sale of part of the land by articles of agreement, is an incumbrance on the legal estate, which renders it defeasible in the hands of the subsequent vendee, who may, therefore, maintain an action to recover back the purchase money. -
    Where A. entered into árdeles of agreement to convey lands to B., who paid'a small portion of the purchase money, aftér which A. died, without having-executed a conveyance, but leaving a will, by which he empowered his executors to sell for the payment, of debts and education of children, and B. took no steps to haye the title completed, but C., B’s. father-in-law, and D. , his father, paid the residue of the purchase money, and received from the executors of A, a conveyance for the land, which they afterwards divided between them: held, that a suit could not be maintained upon the covenants created by the words grant, bargain, and sell, in the agreement, in the name . cf B,, for the use of C., to recover back part of the purchase money, in con- ' sequence of the existence of an incumbrance previously created by A., by 'which the title of C. to part of the land, was defeated. Nor can B. in such'an action, recover back that part of the purchase money which he has paid to the testator.
    The presumption of law is, that the acceptance of a deed in pursuance of articles of agreement, is satisfaction of all- previous covenants; and, although there may be cases in which such acceptance is but a part execution of the contract, ' yet, to rebut the legal presumption, the intention to the contrary must be clear and manifest.
    This cause was tried before Tod, J. at the Circuit Court of Northumberland county in Jlpril, 1828, when a verdict was rendered for the plaintiff. A motion, made on behalf of the defendant for a new trial having been overruled, this appeal was entered.
    The action was covenant, brought by Jacob Seitzinger, administrator of Daniel Strohecker, for the use of Daniel Drinkel, administrator of John Garner, against Marlin Weaver, administrator de bonis non, cum testamento annexo, of Thomas Grant, whose executors had been discharged,from their officé. The declaration was upon articles of agreement, dated the 26 th of Jlpril, 1815, by which the said Thomas Grant agreed to sell to the said 
      Daniel Strohecker, a certain tract of land, and contained a proferí of the agreement. Thé plea was non est factum,.' The instrument having been lost, the plaintiff was permitted on the trial, though opposed by the defendant’s counsel, to prove its contents. It appeared, that by the terms of the agreement, five hundred dollars of the purchase money were to be paid in three weeks from its date; half the residue, in the following October, and the other half on the first of the following April. It contained no covenants except those which'might ax’ise from the words .“grant, bargain, and sell.” On the' agreernent was the following endorsement:—■ •
    
      “ I do agree to convey tó D. Strohecker the within described tract of land in fee simple. 13th of May, 1815.” Signed Enoch Smith.
    
    
      Thomas Grant, after, having received from Daniel Strohecker four hundred and ninety dollars of the purchase money, died, without haying executed a conveyance. He left a will, hy which he empowered ‘ his executors to sell his real estate for the payment of his debts and the education of his children. Daniel ’Strohecker took no measui’es to have the title perfected; but, on the 14th of June; 1816, the executors of Grant executed a deed, with genei’al warranty for the premises contracted for, to John Gar ver, the father-in-law, and. John Strohecker, the father of Daniel, who paid the residue of the purchase money. A partition' of the land was afterwards made between John Garv.er and John Strohecker. To April Term, 1820, an ejéetrhent was brought by Rebecca Stedman against John Johnson and Daniel Strohecker, to recover a part of the tract above-mentioned. It appeared, that on the 15lh of March, 1792, William C'oo/eand Thomas Grant.had contracted, by articles of agreement, to convey a tract of laiid to James Stedman; but the evidence did not show in what manner Rebecca’s title, was connected with this agreement. On the 23d of January, 1822, she had judgment for eighty-nine acres and Seventy-nine perches, of which possession was delivex’ed to her on an Habere Facias Possessionem. In the mean time, John Garver died) and on the 29th of April, .1820, his heirs conveyed that portion of the land, which in the partition had been allotted to him, and which included the land afterwards recovered by Rebecca Stedman, to George Kre«xer, who retained part o.f the pui’ehase'money to await the.event of the ejectment brought by Rebecca Stedman. A suit was aftei'wards commenced -by Kremer against the, executors of Thomas Grant, in which a judgment was confessed on certain terms of compromise between the parties, in full satisfaction of damages on the warranty. . ■ ■■ "
    The following were the x’easons filed in the Circuit Court for a new trial:—: ’ . ' , - . -
    , . “1. Because the court admitted evidence of the existence and loss of the article of agreement declared on, upon the plea non est factum, the declaration containing a proferí:
    
    
      
      “2. Because the court admitted the deed of the executors in evidence, no connexion having been.shown before or after the ad- . mission, between Daniel Strohecker and the grantees in the said deed. ' ■ ' -
    “ 3. Because the estate of Thomas Grant could be made liable in no other way upon the agreement, than by proceeding to prove the contract under the act of assembly providing for the .proof of contracts made by decedents. • ' ' ■
    
      “ 4. Because the plaintiffs showed no breach of the acts in the articles in the lifetime of Thomas Grant, or afterwards, and' did ' not show any act of Thomas Grant encumbering the estate.”
    And because the court erred in their charge to. the'jury in the following particulars:— . ;
    
      “ 1.' In leaving it to the jury to infer, that the eviction of part of the land by Rebecca Stedman, was founded on-the agreement' between Tilomas Grant and James Stedman, the evidence being , contrary.
    “2. In stating to the jury, that the words 1 grant, bargain, and sell,’ in the articles declared on, were sufficient to sustain this action.
    
      “ 3. In stating, that the article of agreement was not merged in the subsequent deed by the executors,
    “4. In stating, that this action could be sustained for the use of Seitzinger, administrator of Garver, when there was no evidence whatever of any connexion between the said Garver and Daniel Strohecker. • '
    “ 5. In stating, that on the evidence exhibited, the arrangement made by the executors of T. Grant with George Kremer, and the confession of judgment to Kremer in satisfaction of- the warranty, amounted to nothing. ■
    “ 6. In stating, that the article declared on, was a deed within the provisions of the act of assembly, and not .merely an executory contract. . - . .
    “7. In instructing.the jury,'that the measure of damages was the purchase money of the land, with interest on the same from the time of eviction.,
    
      “ 8. In saying the plaintiffs could recover in this- action,—and because the verdict was against law and evidence.” '
    
      Greer and Marr, for the appellant.
    1. A lost instrument must be declared on as such. It was,, therefore, improper, where the declaration was upon the instrument itself, of which proferí was made, and the plea was non est factum, to permit evidence to -be given of its contents. On these pleadings the agreement itself ought to have been produced. 1 Phil. Ev. 349, 404. 1 Chit. Pl. 349, 350. 1 Saund. 9, a. note.
    2. The article declared on was an executory contract, which appears to -have been rescinded. There was no. privity of contract between John Strohecker, John Garver, and Thomas Grant, nor any evidence of any authority in Daniel Strohecher to bind them; and if the article was not binding on them, it could not be binding on Grant as relates to them. Bellas v. Hays, 5 Serg. & Rawle, 427.
    3. The acceptance of a deed was a satisfaction of the articles, and a waiver of ,all the covenants they contained. The money was not paid on the articles, but on the deed from the executors. Crotzer v. Russell, 9 Serg. & Rawle, 78. Share v. Anderson, 7 Serg. & Rawle, 60. M'Dowell v. Cooper, 14 Serg. & Rawle, 299.
    
    4. The act of assembly of the 28th of May, 1715, sect. 6, Purd. Dig. 163, making the words grant, bargain, sell, amount to an express covenant on the part of the grantor, clearly relates to deeds executed, and does not- embrace contracts merely executory. If the article amounted to a deed, there was no necessity to stipulate in it for a deed. ■ The authorities are numerous, that such an agreement is not a conveyance and does not divest the .legal title. At common law there was no covenant implied in the conveyance of the fee simple, and the act of. assembly was designed to place such an estate on a footing with less estates, in'respect to which the implied covenant runs with the land, and is one of warranty, broken only on eviction, and giving an action only to the party entitled to the enjoyment of the land, who in this case was Kremer. Lessee of Stouffer v. Coleman, 1 Yeates, 393. Lessee of Sherman v. Dill, 4 Yeates, 295. Lessee of Maus v. Montgomery, 11 Serg. & Rawle, 329. Co. Litt. 384, a. Lessee of Gratz v. Ewalt, 2 Binn. 95. Sugd. 400. After Grtmt’s death his-estate could be bound, and advantage taken of his covenants only by having the contract executed under the act of assembly, to enable executors and administrators, by leave of court, to convey lands . contracted for with their decedents. The words grant, bargain, and sell, raise a covenant against incumbrances suffered by, and for quiet enjoyment against the grantor and those claiming under him. Here, the evidence, if it proved any thing, proved a breach of the covenant for quiet enjoyment, but it was defective in not showing an eviction. Spencer’s Case, 3 Co. Rep. 17. 7 Johns. Rep. 258. 3 Johns. Rep. 472. There must be a special' eviction, and it must be declared on as such. The evidence did not show, that the eviction was under agreement between Grant and James Stedman; nor was there any thing to show, in what manner Rebecca Stedman recovered. The property was conveyed to Kremer, who alone could sustain an action, and who was liable for the purchase money, if he colluded with Grant. Cro. Eliz. 863. 3 Com. Dig. 262. Co. Lit. 385, b. 1 Church’s Dig. 311, No. 22. Id. 312, No. 26. 13 Johns. Rep. 235.
    
    
      5. The measure .of damages was wrong. More than the price paid for the land cannot be recovered, but less may. All that the plaintiff has lost is the purchase money Kremer was. .to pay.
    
      Greenough and Biddle, for the appellee.
    1. The first point. made for the appellant is purely technical; and, when justice has been done, the court will not disturb the verdict for a matter of mere form.
    
      2. The covenants contained in the articles of agreetoent, were not merged in the deed. All parties were deceived in supposing the executors had a right to execute the contract of their testator. The legal presumption, perhaps, is, that, the acceptance of a deed waives the covenants contained in the articles; but where the parties act under misconception, and the intention is clearly otherwise, as it was in this case, that' presumption is rebutted. Crotzer v. Russell, 9 Serg. & Rawle, 78. Anderson’s Executors v. Long, 10 Serg. & Rawle, 55. M'Dowell v. Cooper, 14 Serg. & Rawle, 296. Houghtaling v. Lewis, 10 Johns. 297. Bender v. Fromberger, 4 Dall. 436. Lessee of Sherman v. Bill, 4 Yeates, 295. The article .vested an estate in the land, and is within the act of assembly. Neave v. Jenkins, 2 Yeates, 107.
    3. The covenant implied ,frpm the .words grant, bargain, and sell, does not run with the land. It is not for quiet enjoyment, or of general warranty, but a covenant, that the grantor has not done any act, nor created any incumbrance by which the estate granted by him may be defeated. This covenant was broken as soon as it was made, and an eviction was not necessary to support an action. Lessee of Gratz v. Ewalt, 2 Binn. 95. 4 Com. Dig. tit. Guarantee. 2 Mass. Rep. 433. 14 Johns. 248. 4 Am. Dig. 564, No. 72. 4 Johns. Rep. 89, 93.
    4. The value of the' property at the time of-sale, was the proper measure of damages. Bender v. Fromberger, 4 Dall. 444. Delavergne v. Norris, 7 Johns. 358. Pitcher v. Livingston, 4 Johns. 1. Morris v. Phelps, 5 Johns. 49. 9 Johns. 324. 3 Caines, 111.
   The opinion of the court was delivered by

Gibson, C. J.

Thomas Grant articled with Baniel Strohecker' for the sale of á tract of land; and, having received an inconsiderable part of the purchase money, died without having executed a conveyance. Baniel took no’ other step to complete the purchase; but, John Strohecker, his father, and John Garver, his father-in-law, paid the residue of the purchase money, took a conveyance to themselves, with general warranty from Grant’s executors,‘who were empowered to sell, but only for payment of debts and education of the children; and, afterwards divided the land between them. Garver died, and his heirs conveyed, with general warranty to George Bremer, who retained a part of the purchase. money to await the event of an ejectment brought by Rebecca Stedman, by whom a part of the land has since been evicted on title derived from Grant. The plaintiff had recourse, in the first instance, to the warranty of Grant’s executors; but haying ascertained that it bound the executors personally, and not the estate, he has brought this action in the name of Daniel Strohecker, on the covenant implied from the words grant, bargain, and sell, in the articles of agreement.

It is insisted, that the act of assembly, by force of which-such a covenant can be implied, is applicable only to conveyances executed. No express provision to that effect is found.in the act itself; and, there certainly is nothing in the nature of an executory contract to call for such-a construction;- Where the vendee has done every thing on his part to entitle him to the estate, the articlés are an equitable conveyance of the title; and, therefore, fall .within' the letter, as well' as the spirit of the enacting clause. He sometimes Obtains no other title, and for that reason alone,-the law ought to be construed liberally for his protection. Where a sound price has been paid for an unsound title, I see no objection on this ground, to its being recovered back.

It has also been urged, that the implied covenant is a special warranty, which, running with the land, and being broken only on eviction, gives a right of action only to Kremer, with whom Grant’s representatives have compromised. From expressions used by Judge Yeatés and Judge Brackeneidge, in' the Lessee of Gratz v. Ewalt, 2 Binn. 95, I at first inclined to think, that such had been the cotemporaneous copstruction; but, having taken occasion since the last term, to consult most of the ancients of the profession remaining at the bar, I have not ascertained that any particular opinion on the subject has generally prevailed.. In the case just alluded to, the inquiry was not into the nature'of the. covenant, but its extent; and it was 'inadvertently called a special warranty, doubtless, because every other covenant to secure the enjoyment of land, having fallen into disuse,' the term was used generically. There is nothing then, in the way of the meaning of the legislature, as explained by itself, that, “the words grant, bargain, and sell, shall be adjudged an express covenant to the-grantee, his heirs and assigns, to wit: That the grantor was seised of an indefeasible estate in fee-simple, freed from incumbrances done or suffered by the grantor; as also, for quiet enjoyment against the grantor, his heirs and assigns.” By this, it was evidently intended to give the vendee the benefit of two distinct covenants-r-a covenant of seisin.as regards defeasibility from the acts of the vendor, and a covenant for quiet enjoyment against disturbance by the vendor or those claiming under him. . But this special covenant of seisin is'broken by'the existence of an incumbrance .created by the vendor, the instant it is sealed and delivered. Funk v. Voneida, II Serg. & Rawle, 109. Now, every burden on the" estate, or clog on the title, such as a term for years, or grant by copy of court roll, is an incumbrance, (Vin. tit. Incumbrance, a,) and the equity created by the sale to Stedman, was an incumbrance on the legal estáte in the hands of Grant, which rendered it defeasible in the hands also pf the subsequent vendee, who' would, therefore, be entitled to an action to regain the purchase money.

Minor points have, been argued, which it is unnecessary to consider, as there is, it seems to me, at least, one decisive objection to a recovery. It is this: the contract between Grant and Daniel Strohecker was abandoned, and the money now sought to be recovered back, paid on a different contract between other parties. If the administrator of Daniel Strohecker, in whose name suit is brought, has not a cause of action, neither ;has the person whose name is marked as the equitable plaintiff, only to designate him as the party to "receive whatever the legal plaintiff may recover. But Daniel neither obtained a conveyance, nor entitled himself to one by payment of the purchase money. The estate, legal or eqjuitable, never was in him; and his administrator, therefore, cannot have an action for a defect of title which was no prejudice to his intestate, and to recover back purchase morrey which hisdntestate never-paid.. But if he cannot recover, neither can the equitable plaintiff, who claims under him as an equitable assignee. .Take it, however, that his father and his father-in-law, furnished the money on Daniel’s account,- and that the title was made to them with his assent: still the objection "remains. By putting themselves in his stead, both he and they resigned the benefit of the implied covenant, inasmuch as they cannot sue in his name for what is, both at law and in equity, an injury not to him but to them. But could they introduce thémselves into the contract without the assent of Grant, or "some One authorized to assent for him ? I shall attempt to show, that the executors had no authority to. assent. But as I have already intimated, Grant’s contract was with Daniel Strohecker 'alone', and no one else could be introduced into it, without his assent, so as to produce a personal responsibility on. his part, or a representative responsibility on the part of his executors; for no principle is better established, than that a decedent’s estate can be charged only on a liability created, immediately or remotely, by himself. If the executors have altered the contract, it is not that to which their testátor assented, and they can be made to respond on it, only in their individual capacity,- the éstate being liable to refund to them whatever the transaction added to the assets. There was then, In the first place, the introduction of new parties in the place of the vendee. But there was also the introduction of new parties in the’plaee óf the vendor, and without his assent; for, it seems to me, the executors had no authority to perfect the contract, under the will. They were authorized “ to sell and convey for payment of debts and education of the children;” but the execution of such a power, is an entirely distinct thing from-the completion of a contract made by the testator himself. If the -executors could convey in this instance, they might do so where all the purchase money but a shilling had been paid, although the transaction could with no propriety be said to be a sale for the payment of debts or education of .the children. Here a portion of the purchase money was in fact' paid; and, as regards that portion, the conveyance was not a sale in execution of the power. But the conveyance could not be void" in part, and good for the residue; because,' the act was, in its nature, incapable of apportionment. The power was a naked one, and without' interest; and, therefore, to be construed strictly, 1 Fes. 306, 2 Fes. 69: consequently,-it is in this instance applicable only to a sale in the popular sense of the word. But there is a substantial difference in this respect, between a sale by the executors and a sale by the testator himself. Of the circumstances attending the latter they- may be ignorant, and, therefore, incompetent to judge whether the purchaser is entitled to have the contract executed; and the parties to be affected are consequently entitled, not only to" have it proved, according to the act of assembly, but the judgment of the court as to its sufficiency. It seems to me, therefore, the original contract could be.perfected only by the adjudication of the court; and) pursuant to that, the executors could" have conveyed to none but the original purchaser. We have, then, the - case, not .only of vendees who had no right to become parties" to the original contract, .but also of vendors equally destitute of such a right. In what light did these parties themselves view the-transaction? Undoubtedly,’ as a new purchase. There was an entire departure from the contract in the articles. The money was paid, not on ■ the articles, but on a conveyance to persons who were not entitled under the articles;- 'and, under the guarantee, not of the.implied covenant in the articles, but of the personal covenant of the grantors. 'The original contract was evidently abandoned, (possibly because it was not thought prudent to vest the title in Daniel,) and a new one, in substance a sale, framed on the basis of it, by which alone the executors had power-to convey a title.

But even if the contract were not changed, and the conveyance were, taken to have been in execution of the articles, (the grand postulate of the.plaintiff’s argument,) it would leavehim exposed to a rule of law, which would be fatal to his claim. The presumption of law is, that the acceptance of a deed in pursuance of ¡articles, is satisfaction of all previous covenants; and, where the conveyance contains none of the -usual covenants, the law supposes, that the grantee agreed, to take the title at his..risk, or else, that he would have rejected it altogether.. .This is'apparent in Howes v. Barker, 3 Johns. 506; and decisively established by Share v. Anderson, 7 Serg. & Rawle, 43 ; Crotzer v. Russell, 9 Serg. & Rawle, 78, and Houghtaling v. Lewis, 10 Johns. 279. Down to the. period of its consummation, an executory-contract is subject to modification; and, where an act .is done, which, without fraud or mistake, is tendered on the one side, and accepted as full performance on the other, it is not competent to the party who accepted, to allege that some part of the original contract remains to be performed: Here there was-a new covenant taken, which is inconsistent with the supposed retention of the .old one. There'may,, undoubtedly, be cases where . the acceptance of a conveyance will be but a part execution of the ■articles, as in Brown v. Moorhead, 8 Serg. & Rawle, 569, where a covenant to convey a particular tract of land, and also to cause the interest of a third person in another tra'ct . to be conveyed, was held, not to be satisfied by a conveyance of the first mentioned tract. But to rebut the presumption, which the law would otherwise make, the intention to the contrary must be clear and manifest. The case of Anderson v. Long, 10 Serg. & Rawle, 55, is not an exception. There the articles were admitted to show, not an unsatisfied responsibility, but the consideration of the bond on which the suit was. founded; and, as' regards the stipulation, that the debt should not, be demanded without six months’ notice, the object was to show fraud or mistake. . In the case at bar, there is nothing to oppose the presumption, but on the contrary, a strong circumstance in corroboration of it; and it, therefore, seems to me, the objection to the verdict on this ground, is insuperable.

The root of the error is. to be found in the supposition, that the covenant of the executors would bind the estate of their testator. Its liability could be preserved only by proving the contract,' and taking a conveyance in pursuance of an adjudication of the court, in which the operative words grant, bargain, and sell, would have been as effectual as when used ,by the testator. In this way, or in pursuance of a power delegated in the will, but no other, could the executors have subjected the estate to'the consequences of their covenant; and, in this way, might the purchasers have paid their money on the credit of the estate: they chose to pay it on a covenant which pledged nothing but the credit of the. executors, and the mistake is incurable. ’ . ■

It might seem to admit of a doubt, whether Daniel Strohecker’s administrator may not recover back that part of the purchase money which was paid in the lifetime of Grant. A decisive objection is, thát he .cannot recover for what was no injury to him—a defect in a title, which, in'equity or at law, was never conveyed to him. His remedy was on the covenant to convey, and his course was to entitle himself, by proving the contract, and tendering the purchase money; in which case, had the executors' not tendered an unexceptionable title, he might have.recovered against them for rescinding the contract, or have accepted the title, and maintained an action on the implied covenant of seisin in the-conveyance. Instead of this he pursued a.course unauthorized by'the act of assembly,, and precluded himself altogether.

Judgment reversed, and a venire facias de novo awarded. 
      
       See 16 Serg. & Rawle, 237.
      
     