
    [Chambersburg,
    October 25, 1824.]
    WATSON, Administrator of DAVIS, against BLAINE and Another, Executors of BLAINE.
    IN ERROR.
    The court is to give the construction of a written instrument, except where it cannot be understood without reference to facts dehors the writing; and, in that case, the jury are to judge of the whole together.
    Where a writing contained in the first part of it, a certificate that A., prior to its execution, had sold to B. seven hundred acres of land, and that a survey, made by S. L. the deputy surveyor, containing two hundred and nineteen acres, seventy-six perches, and the allowance of six per cent. was part of the aforesaid tract, for -which the said Ji. had paid him four pounds five shillings, specie, per acre ; and then followed a covenant, by the said A., to make to the said B. or his assigns, a deed of conveyance for the aforesaid two hundred and nineteen acres, seventy-six perches, clear of every incumbrance, &c. lield, that the payment of four pounds five shillings, specie, per acre, referred only to the two hundred and nineteen acres, seventy-six perches, and not to the whole tract of seven hundred acres.
    An acknowledgment, in an agreement for the conveyance of land, of the receipt of the purchase money by the covenantor, is evidence of that fact ¡ but it is not conclusive, and the covenantor is not estopped from showing, that the money has not been paid.
    An action to recover damages for the non-performance of an agreement under seal, for the conveyance of land, is to be brought by the personal representative of the covenantor, and not by his heir.
    The record of this case was returned on a writ of error to the court of Common Pleas of Cumberland county, accompanied by a great number of bills of exceptions to evidence; and in this court, various errors were also assigned in the charge of the court below, which had been excepted to by the counsel for the plaintiff in error, who was likewise plaintiff below. These exceptions, all of which may be resolved into a few principles, arose out of the following circumstances:
    On the 29th of June, 1782, Ephraim Blaine, of the city of Philadelphia, the defendants7 testator, and John Davis, of Mid-dletown township, in the county of Cumberland, the plaintiff’s intestate, entered into articles of agreement, under seal; in which the said Ephraim Blaine, after reciting that he was seized in' fee of a tract of land in Middletown township, called Coulter’s and Peter’s lands, containing eight hundred and thirty-two acres, seventy-two perches, and had bargained and sold the same to the said John Davis; in consideration of the sum of six hundred pounds, lawful money of Pennsylvania, the receipt of which, at the execution of the instrument, he acknowledged; and also, in consideration of five bonds, all bearing dato the 29th of June, 1782, executed and delivered by the said John Davis to the said Ephraim Blaine, viz. one bond for six hundred pounds, payable on the 1st of April, 1783; the second bond for the same sum/ payable on the 1st of JLpril, 1784; the third for the same sum, payable on the 1st of JLpril, 1785; the fourth for the same, sum, payable on the 1st of JLpril, 1786; and the fifth for the sum of five hundred and thirty-seven pounds, fifteen shillings, payable on the 1st of April, 1787, amounting, together with the said sum of six hundred pounds in hand paid, to the sum of three thousand, five hundred and thirty-seven dollars, fifteen shillings, the full amount of the consideration money of the said tract of land, covenanted and agreed, to convey the said tract of land to the said John Davis, his heirs and assigns, within a reasonable time after the payment of the said bonds, with interest, &c,
    On the 6th of June, 1783, a second agreement, drawn up in the handwriting of the said Ephraim Blaine, was entered into between the same parties, of which the following is a copy;
    “ I do hereby certify, that in the month of May, 1781, I sold Colonel John Davis seven hundred acres of land, situate in Mid-dletown township, Cumberland county, two miles from the town of Carlisle, and that a survey made by Samuel Lyon, deputy surveyor, containing two hundred and nineteen acres, seventy-six perches, and the allowance of six joe?’ cent, is part of the aforesaid tract, for which the said Davis paid me four pounds five shillings, per acre, specie; and I do hereby engage to make the said Davis, or his assigns, a deed of conveyance for the aforesaid two hundred and nineteen acres and seventy-six perches, clear of every incum-brance to the first of March, 1775. Given under my hand and seal,” &c.
    (Signed) “ Ephraim Blaine
    
    This suit was brought in the year 1805, by the administrator of John Davis, against the executors of Ephraim Blaine, for not executing a conveyance, agreeably to the covenant contained in the last agreement. If was admitted on the trial, which took place, in the year 1820, that the two hundred and nineteen acres, seventy-six perches, mentioheel in the agreement of the 6th of June, 17S3, was part of the tract of eight, hundred and thirty-two acres, seventy-two perches, spoken of in the agreement of the 29th of June, 1782, and that the agreement last executed, referred to the first. It ap^_ pearerl that immediately after the execution of the agreemenVof the 6th of June, 1783, Davis went into the possession_of fife two hundred and nineteen acres, sbYl’nt-y->s’X-perchs3>- astf continued in possession until he died. After his death, which took place about the 4th of July, 1784, the land was sold at different times to various other persons, by the said Ephraim Blaine and his executors, without notice of the sale to Davis.
    
    The defendants offered to prove, that all the bonds given for the purchase money, and even a bond given for part of the money said to have been paid at the execution of the agreement, remained in their possession uncaneelied; that Davis was in embarrassed and insolvent circumstances, from the date of the agreement until his death, and many other facts, tending to show that a very small payment only had ever been made by hirn on account of thejpur-chase money. The counsel for the plaintiff objected to all the testimony offered of this character, but the court admitted it, and bills of exceptions to its opinion were sealed.
    The exceptions taken to the charge, which was given at considerable length to the jury, will appear from the points made in the argument, by
    
      Mahon and Carothers, for the plaintiff in error.
    The first question raised by this record, is, Whether or not the court was bound to give a construction to the agreement of the 6th of June, 1783? We contend, that it is a fixed principle, that to the court, exclusively, belongs the construction of written instruments, especially of those under seal, and that in submitting it to the jury, the Court of Common Pleas erred. In Welsh v. Dusar, 3 Binn. 337, the Chief Justice insists on the importance of preserving this principle untouched; and, in Moore v. Miller, 4 Serg. & Rawle, 279, this court reversed the judgment of the court below, because it had left the construction of an award of arbitrators to the jury. Where a paper speaks for itself, it is to be construed ex visceribus suis, and the.court cannot enter into any equitable considerations. New York Corporation v. Cashman, 10 Johns. 96. 1 Phill. Ev. 41-6, (473.) Storer v. Freeman, 6 Mass. 21. 440.
    This position being established, the next question is, What is the true construction of the instrument in question? That the acknowledgment of the payment of the purchase money, was restricted to the tract of two hundred and nineteen acres, seventy-six perches, is evident from the whole tenor of the agreement; which is to be considered as a whole, and not in detached parts, nor to be tested by nice grammatical criticism. The first agreement was for the sale of Coulter’s and Peter’s land, containing eight hundred and thirty-two acres, seventy-two perches, and no conveyance was to be executed until the whole of the purchase money was paid. The second agreement was not intended to destroy any part of the first, but to provide for the immediate conveyance of two hundred and nineteen acres, seventy-six perches, which Davis had paid for. It would have been unreasonable to expect a conveyance of more, and therefore a. cash payment for/Chat quantity, must be understood from the agreement, and not a payment in bonds, for the whole of the tract of eight hundred and thirty-two acres, seventy-two perches.
    The certificate of the 6th of June, 1783, contained an express acknowledgment by Blaine, that he had received payment for the quantity of land which be stipulated to convey, and this he is estopped from denying. If he had sued Davis on his bonds, this certificate would have been evidence to defeat the action, and, on the same principle, it is evidence in an action by Davis, founded upon the agreement. A man is estopped from denying a fact, which he has asserted by a recital in a deed. Peake et al. v. United States, 9 Crunch, 33. Shelly v. Wright, Willes Bep. 9. 3 Burr. 1637.
    The court below erred in stating to the jury, that the lapse of time before the institution of this suit, was a circumstance of great weight against the plaintiff’s fight of recovery. Lapse of time creates a legal presumption, which in this case did not exist, and therefore this was an erroneous instruction in point of law, and not a mere opinion on a question of fact.
    There was manifest error in stating to the jury, that this action should have been brought by the heir, and not by the administrator of John Davis. 1. The covenant was not a real covenant. Blaine never conveyed the land to Davis, and therefore there was no covenant which could run with the land. In England, the heir could not support an action on this covenant, which was to make a conveyance to Davis, or his assigns. A covenant real must be annexed to the land, and accompany the legal title, which was never in Davis. 1 Brown’s Ch. 364. 4 Cruise, 67. 1 Esp. N. P. 152. Spencer’s Case, 5 Bep. 16. Greenly v. Wilcocks, 2 Johns. 1. Hamilton v. Wilson, 4 Johns. 72. Moody v. Vandyke, 4 Binn. 41. Hawn v. Norris, 4 Binn. 77. 2. If the covenant was real, it was broken in the lifetime of Davis. 3. In Pennsylvania, the action could only be supported by the administrator, whether the breach was in the lifetime of the intestate or not. Here lands are assets for the payment of debts; but if the heir could support an action for damages, they would be diverted into another channel, and would cease to be assets, and thus the whole policy of thé law would be defeated. By giving the right of action to the administrator, this policy is adhered to, and justice done to all who are interested in the land; for after paying the debts of the intestate, the damages recovered would be for the use of the heir. Graff v. Smith’s Executors, 1 Dali. 481. Morris’s. Lessee v. Smith, 1 Yeates, 238. 4 Dali. 209. Wootering v. Stewart’s Executors, 2 Yeates, 483. M‘Pherson v. Cunliffe, 11 Serg. & Bawle, 422. Wilson v. Watson, 1 Peter’s Rep. 
      273. Telfair v. Stead’s Executors, 2 Crunch, 407. 13 Mass. Rep. 162.
    
      iAlexander and Metzger, for the defendants in error.
    By the agreement of the 29th of June, 1782, Blaine was not bound to convey to Davis, until the whole of the purchase money of the eight hundred and thirty-two acres, seventy-two perches, was paid. The two agreements are to be considered together, as the last has reference to the first. The object of the second agreement was to abolish the first, except so far as respects the conveyance of two hundi’ed and nineteen acres, seventy-six perches; and in relation to that quantity of land, it was the design to put the parties on the same footing in regard to payment, as that on which they stood in the first agreement. It was loosely drawn, when the agreement of the 29th of June, 1782, was not before the parties, and contains several mistakes: the year 1781, for example, is referred to instead of 1782, and seven hundred acres, instead of eight hundred and thirty-two acres, seventy-two perches. It should therefore be liberally interpreted, according to the intention of the parties. We have most reason to complain, that the court left the construction of the instrument to the jury, because we say it ought to have been construed in our favour, and that the payment therein acknowledged to have been made, was merely the receipt of the bonds mentioned in the first agreement. But whatever may have heen the true construction of the instrument, the fair question was, whether or not the money had been actually paid? and it was proper to receive evidence to ascertain that fact. The authorities to show the propriety of such evidence are numerous. 18 Johns. 420. Heilner v. Imbt'ie, 6 Serg. & Rawle, 410. 6 Binn. 345. 2 Coke, 74. 5 Burr. 2785 — 7. 4 Cruise, 428. Cro. Jac. 512. M‘Dermot v. United States Ins. Co 3 Serg. & Rawle, 607. 1 Yeates, 138. 2 Dali. 174. Hamilton v. M‘Guire, 3 Serg. & Rawle, 355. 0‘Neill v. Large, 3 Harr. & M‘Hen. 433. Jordan v. Cooper, 3 Serg. & Rawle, 564. Bowen v. Bell, 20 Johns. 341. Miller v. Heller, 7 Serg. & Rawle, 36.
    But the court was right, in réferring the construction of the second agreement to the jury. There were many, extrinsic facts to be taken into consideration, and where that is the case, the jury is the proper tribunal to judge of the whole. White v. Kyle, 1 Serg. & Rawle, 520. 2 Serg. & Rdwle, S. 8 Serg. & Rawle, 150. 4 Cranch, 71. Dennison’s Executors v. Wertz, 7 Serg. & Rawle, 372.
    The length of time which elapsed before the institution of this suit, was undoubtedly a circumstance, which raised a strong presumption against the plaintiff’s right of recovery. But even if the court were wrong in this opinion, it was merely an opinioh on a matter of fact, in which error cannot be assigned.
    This action cannot be sustained by the personal representative of the intestate. If damages are to be recovered^ they belong to the heir. Davis died in the possession and full enjoyment of the property, and therefore no breach of the agreement took place in his lifetime. The rule here is the same as in England. If the breach takes place during the life of the ancestor, the right of action belongs to the executor; if after his death, to the heir. 1 Chitty on PI. 14. Sug. on Vend. 367. Van Rensalear v. Platner’s Executors, 2 Johns. Ca. 24 Hamilton v. Wilson, 4 Johns. 72.
   The opinion of the court was delivered by ,

Tii.ghmaN, C. J.

This is an action of covenant, by the administrator of John Davis, deceased, against the executors of Ephraim Blaine, deceased, on a writing under hand and seal, executed by the said Blaine, on the 6th of June, 1783. The first question which arose, on the trial of the cause, was, Whether the court was bound to give the construction of the writing, and, if so, what was its meaning? It is a general rule, that the court, and not the jury, are to judge of the meaning of a written instrument, except in certain cases, where the instrument is not to be understood without reference to facts dehors the writing, and then it may be proper that the jury, who are to inquire into the facts, should judge of the whole. But when that is not the case, the court are bound to give the construction; and if they refuse to do so, and leave it to the jury, it is error. It was so decided by this court, in Moore V. Miller, 4 Serg. & Rawle, 279. It has also been decided in other cases, and may be considered as settled law. There is nothing in the writing in question, which is not intelligible without reference to any thing extrinsic, and therefore its meaning ought not to have been submitted to the jury. It consists of two parts. The first, is in the nature of a certificate of the truth of certain facts, antecedent to the writing. The second, is a covenant by Blaine, that he will convey certain land to Davis. In the first place, Blaine certifies, that in the month of May, 1781, he sold to Davis seven hundred acres of land, situate in Middletown township, Cumberland county, two miles from the town of Carlisle, and that a survey made by Samuel Lyon, deputy surveyor, containing two hundred and nineteen acres and seventy-six perches, and the allowance of six per cent, is part of the aforesaid tract, for which the said Davis paid him four pounds, five shillings specie per acre. Then follows an engagement of Blaine, to make the said Davis, or his assigns, a deed of conveyance for the aforesaid two hundred and nineteen acres and seventy-six perches, clear of every incumbrance, up to the 1st of March, 1775. The dispute, on the construction of this writing, was, whether the payment of four pounds, five shillings specie, per acre, referred to the whole tract of seven hundred acres, sold by Blaine to Davis, or only to the two hundred and nineteen acres and seventy-six perches, which, by the subsequent part of the writing, Blaine agreed to convey. The payment might, without any great violation of grammar, havé reference either to the whole tract, or the part. But the strict rules of grammar are not to govern the construction of writings, made by men who are not grammarians. The meaning is to be sought for by a consideration of the whole. Parts that are obscure, may be explained by those which are not doubtful.. I am of opinion, that the payment intended in this instrument, is not for the. whole seven hundred acres, but the two hundred and nineteen acres and seventy-six perches, because it is the latter only which Blaine, immediately after, engages to convey. If he had received payment for the whole, it would have been his duty to convey the whole, and there is no conceivable reason why he should declare, that he had been paid for the whole and yet engage to convey but a part. But a much more important question in this cause, was, Whether the defendants were estopped from denying the payment for the two hundred and nineteen acres and seventy-six perches, which Blaine engaged to convey to Davis. It appears that the instrument on which this action was founded, was in the handwriting of Blaine, that it was loosely drawn, and at a time when he had not before him the articles of agreement between him and Davis, for the sale of the whole tract of land, of which the two hundred and nineteen acres and seventy-six perches were a part. This is evident, because these articles are dated in the month of June, 1782, instead of May, 1781, as mentioned in the writing on which this suit was brought; and the contract was for the sale of a tract containing, not seven hundred, but eight hundred and thirty-two acres. The terms of sale were, six hundred pounds down, four bonds for six hundred pounds each, payable on the 1st of April, 1783, 1784, 1785, and 1786, and one bond for five hundred and thirty-seven pounds, fifteen shillings, payable on the 1st of April, 1787, making the whole amount .of purchase money three thousand five hundred and thirty-seven pounds, fifteeen shillings. On the payment of all these bonds, with such interest as might acerue on them, Blaine was to execute a conveyance to Davis. The defendants offered to prove, that all these bonds remained in their possession uncan-colled, and that no payment of any thing, but a very small sum, had.ever been made by Davis; and the Court of Common Pleas admitted evidence for that purpose. There is no doubt that the certificate of Blaine was evidence of his having received full payment for the two hundred and nineteen acres and seventy-six shillings. But it does not follow that it was conclusive evidence, nor do I think it was. It is very common, in deeds for the conveyance of land, to acknowledge the receipt of the purchase money in the body of. the deed, and also in a' separate receipt at the bottom, or on the back of it, though no money has been paid, Jjut only secured to be paid by bond or otherwise. But whenever the grantee has attempted to ayail himself of these receipts, the grantor has been permitted to show, that the money was not paid. It was so decided by this court, in the cases of Jordan v. Cooper, 3 Serg. & Rawle, 564, and Hamilton v. M'Guire, 3 Serg. & Rawle, 355; also, by the Supreme Court of New York, in the case of Bowen V. Bell, 20 Johns. 338; and, in Maryland, in the case of O'Niel v. Lodge, 3 Harr. & M'Hen. 433. The principle-intent of Blaine's certificate of the 6th of June, 1783, (the present cause of action) seems to have been, to assure to Davis the immediate conveyance of two hundred and nineteen acres and seventy six perches, part of-the larger tract, which he had sold him by the articles of the 29th of June, 1782, and of which, by these articles, Davis was not entitled to a conveyance, until the price of the whole eight hundred and thirty-two acres was paid. And he might perhaps, have acknowledged the payment of the price of, the smaller quantity which he agreed to convey, although, in fact, he had not received the money, but only a bond for it; just as he would have acknowledged the receipt of the purchase money of the whole eight hundred and thirty-two acres, if he had made a deed of conveyance for the same, and taken security instead of receiving the money. And if he had made such a deed, containing such an acknowledgment of payment, he would have been permitted to show, that in truth he had not received the money, but taken the bonds of the grantee, which remained unpaid. Í am of opinion, therefore, that there was no estoppel, created by the writing of the 6th of June, 1783, but the defendants might be let into the evidence, to show the truth of their case.

Another point remains for consideration, — Whether this action can be supported by the administrator of Davis? It is objected by the defendants, that the action should have been brought by the heir, who, if the purchase money has been paid, is entitled to a conveyance, and that (he administrator has no right, by a recovery of damages, to convert the real estate into personalty. I will first observe, that under the circumstances of this case, an action for the recovery of damages is the only remedy which can be had on this contract. Ephraim Blaine having sold the land to a bona fide purchaser who paid full value, and had no notice of the contract between Blaine and Davis, the land is gone for ever. The purchaser has the legal estate, and there is no equity against him. But who is to bring the action for damages ? The administrator of Davis, I apprehend, and no other person. What other person can be entitled to an action ? The contract was with the testator. The action for breach of contract is a personal action, which is transmitted to the personal representative. The heir does not sue-' ceed to an action of this kind. There are contracts which belong to the realty, and run with the estate; and such descend to .(he heir. If the ancestor, for instance, makes a lease, reserving rent, the rent which accrifes after the death of the ancestor, is incident to the reversion, and goes to the heir, who may support an action on the lease made by his ancestor. So, covenants by a tenant, for making repairs, or doing other things on the demised property, for the benefit of it, run with the land, and the person seized of the reversion may support an action for breaches in his own time. But, in the present instance, Davis was seized of no estate, and therefore no estate descended to his heir — there was no estate to which a covenant could be attached. There was an equity, indeed, but that is quite another thing. When we speak of covenants running with the land, for the purpose of supporting an action, we mean a legal estate in the land. It is not observed, that on the present occasion there is any clashing of interest between the administrator and the heir. But it must not be supposed, that the administrator can at his pleasure convert an equitable estate into personal property, For example — suppose the heir of Davis to be in possession of this estate, no conveyance having ever been made of it by Blaine to a third person, and the whole purchase money having been paid; in that case the heir would have a complete equity, with which he might, if he thought proper, rest content, without calling for a conveyance of the legal estate. If the administrator, under such circumstances!, t/'ould bring an action for damages, because the legal estate was not conveyed, he could recover no more than nominal damages. In the present case, where the heir has never had the possession, and never can have it, the land being conveyed to a third person, if damages are recovered, they will, in the first place, be assets in the hands of the administrator for the payment of Davis’s debts; which are said to be large enough to absorb the whole. It is unnecessary, therefore, to consider who would.be entitled to the surplus, if there were any. The only question, for present adjudication, is, Whether the administrator can support the action ? And, that he can, I think there is no doubt. Indeed, I do not consider it a new point. The principle was decided, by this court, in the case of Freeman (in error) v. Pennock’s Administrator, (Lancaster, May, 1821.) There, Pennock and Freeman had purchased a tract of land in partnership. Each paid a moiety of the purchase money, and the conveyance of the whole was made to Freeman, in trust, as to a moiety, for Pennock. Freeman refused to make a conveyance to Pennock of his moiety. Pennock died, and an action was brought by his administrator for the recovery of damages. The question was .made, whether the action could be supported in his name, and it was held that it could. As we have no court which has power to compel the specific execution of contracts, there may be cases where the heir, who in chancery might enforce a conveyance of the legal estate, may, with us, make use of the name of the administrator, to accomplish the same purpose through the medium'of damages. But this is entering into a wider field.than the present subject demands. Suffice it to say, that in this case the administrator may support the action. I am of opinion, that the judgment should be reversed, and a venire de novo awarded.

- Judgment reversed, and a venire facias de novo awarded.  