
    ALLEGHENY COUNTY,
    March Term, 1794.
    Adam Birchfield, Administrator of William Redden, v. Jacob Castleman.
    An action of covenant on a conveyance from Castleman to Redden, of all right and title in seventy acres of land, for 70l. dated 13th January, 1781, with a warranty against all claiming by improvement. The land is near Pittsburgh, and was then in Westmoreland county. The plaintiff produced a copy of an ejectment for this land, brought in Westmoreland county court to July term, 1781, by William Boniface against Redden; in which, after issue joined, and a rule for trial, there was a judgment nisi, at April term, 1785; and an habere facias possessionem and fieri facias for 3l. 16s. 11 d. costs returnable to July term, 1785.
    
      Brackenridge, for the plaintiff,
    then offered to prove, that, at the time of the execution of the deed, on a conversation respecting any claims, which might be brought forward, it was agreed between Castleman and Redden, that Castleman should defend the suits, which might be brought, and Redden should pay half the costs.
    Leave was given to introduce this proof, reserving the point, and making it a part of the record, that the defendant might have the advantage of it, either on a motion for a new trial, or on a writ of error.
    It was then proved by the subscribing witness to the deed, who was present at the bargain, that Castleman (being acquainted in the country, and Redden a stranger) agreed, that, if any suit were brought against Redden for this land, he would carry it on; and Redden agreed, that he would pay half the costs. Boniface, who brought the ejectment, proved, that he had lived on the land for six months, and made an improvement on it, in 1779; that Castleman “ flood the suit at Westmoreland, 
      to try the title;” and that, when he brought the ejectment, in Westmoreland, had no warrant for the land, but afterwards, in December, 1784, procured one.
    
      Ross, for the defendant.
    
      Castleman was to defend against improvements. The proceedings in ejectment are irregular. Redden ought to have defended the suit; he did not, for he suffered an irregular judgment to be obtained. After issue joined, how could there be judgment without a trial by jury, unless the defendant confessed it. Redden suffered Boniface to take out a warrant first, having lien by five months after the office opened. Castleman would have taken out a warrant, if he had not fold to Redden; and Redden ought to have done it, and secured the land. There is no evidence, that Redden furnished Castleman with half the costs of the ejectment, as he undertook to do.
    Brackenridge, for the plaintiff.
    
      Redden was dead before the judgment. The letters of administration are dated in August, 1784. Redden would have acted dishonestly in taking out a warrant, for the land on which another had made an improvement.
   President.

If Castleman had notice, he was bound by his agreement, to defend the ejectment, and if he did not, he must take the consequences of the recovery against Redden. Though Redden was to pay half the costs, I see no reason rising out of this evidence, as now given, to prevent his recovering damages now. If the costs of the ejectment were meant, it seems he has paid them all. If the expences of Castleman in defending were meant, he only could ascertain them; and he ought to have ascertained and demanded them. Until he do this, Redden is in no default; and of doing this we have no evidence. A reasonable excuse for delay, in taking out a warrant, arises from the ejectment brought, immediately after the purchase of the land, for, in the trial of this ejectment, no warrant obtained after the commencement of the suit, could be given in evidence— Pending the ejectment, the Board of Property would have given no patent, and they would have been governed by its decision. There was no title from the Land Office, that could have been given in evidence on that trial; and the event of that trial must have depended on the settlement or improvement right, which Castle man warranted to Redden. This settlement or improvement right was the very thing, which Redden bought from Castleman, and which Castleman warranted to him: it was the very essence of the bargain, and Castleman has failed in his warranty of it.

1 PowelContr. 431. 2 Bla. Rep. 1249.

2 Bla. Rep. 1249. Dall. 424.

The jury found a verdict for the plaintiff, for 133l. 12s. 6d. damages, which was the amount of the price paid, and the interest, and one half of the costs in Westmoreland.

At December term, 1794, a new trial was moved for.

Woods, for the new trial. If Castleman's title to this land can be examined, it will be found better, than the title of Boniface. And I would not move for a new trial, if I were not convinced, that injustice is done by the verdict, which I now move to set aside.

Castleman was not bound to warrant against any loss accruing from Redden's neglect of taking out a warrant. The judgment in Westmoreland is irregular, and therefore not more to be regarded, than if it had been before a justice of the peace. The turning Redden out of possession on this judgment, is therefore irregular and a trespass. Castleman was only bound to defend against a regular recovery, not against trespasses. The deed does not bind Castleman to defend an ejectment, but, after a defence by Redden, and an eviction of him, to make good to him the loss. The admission of any parole testimony, varying this obligation, is inadmissible. This parole testimony is an additional contract and a ground of an action on the case. The action brought is covenant on a deed. The admission of this evidence is joining, in one, two actions, which cannot be joined.

Brackenridge, for the plaintiff. Whether the judgment be regular, or not, there was an habere facias possessionem, and we have been turned out of possession. But it is immaterial, whether the judgment was regular or not; if Castleman was bound to defend, the ejectment, it was his business to see to the regularity of the judgment.

The question therefore really turns upon this point; was the parole evidence admissible or not?

It was not to vary the agreement. It was only proof of a collateral agreement made at the same time; as, on a contract of lease, you may prove, by parole, who was bound to repair. It is true, we could not, by parole proof, shew that more land was sold, or for a higher estate, than the deed shews, but we may prove the collateral matter, of the manner, in which the warranty and defence was to be made.

At March term, 1795, the opinion of the court was delivered.

President. This action is founded on a covenant “ to make good a tract of land, from all persons claiming, except the lord of the soil, of any legal improvement, made before or after the improvement purchased by Castleman,” who conveyed the land to Redden, with this covenant inserted in the conveyance, on 13th January, 1781. At the trial of this action, last March term, the plaintiff produced an exemplification of proceedings in an ejectment in Westmoreland county court, brought by William Boniface against Redden, for this land, to July term, 1781. This exemplification states an issue joined, and, afterwards, at April term, 1785, a judgment nisi, and to July term, 1785, an habere facias possessionem, and a fieri facias, for 3l. 16s; 11d. costs.

This evidence was, prima facie, sufficient to support the action: and here, till something to defeat it appeared, the plaintiff might have rested. But his counsel then offered to prove, that, at the time of the sale, and of the execution of the deed, it was agreed by the parties, that, if any suit was brought against Redden, Castleman would defend it, and Redden would pay half of the costs.

This parole testimony out of the deed was objected to, but we admitted it, reserving the point, and making it part of the record. The proof was then made, and it was also proved, that Castleman “stood the suit at Westmoreland to try the title;" that Boniface had then, no legal title for the land, but had lived six months, and made an improvement on it, in 1779. On this evidence, the jury here found a verdict for the plaintiff, for the amount of the purchase money and interest, and of one half of the costs in Westmoreland county court.

The counsel for the defendant, alledging that the merits are in his favour, moved to set aside this verdict, on these two grounds,

1. That the judgment in Westmoreland county court, being after issue joined, and without a trial, is irregular, and not to be regarded. There is, therefore, no legal ouster of Redden, and Castleman is not bound to defend against illegal acts.

1 Powel Contr. 431. 2 Bla. Rep. 1249.

2 Bla. Rep. 1249.

2. That the parole testimony ought not to have been admitted, as it is a separate undertaking altering the nature and effect of the covenant; and its admission amounts to joining an action on the case, with an action of covenant.

The plaintiff’s counsel, observing, that the judgment, whether regular or not, had turned Redden out of possession, confined the argument to what he considered as the only point in the case, the admissibility of the parole testimony; which he supported, as not altering the contract, in any material point, but establishing a collateral agreement, explaining the manner, in which the contract was to be executed; as, in a lease, you may shew who was bound to repair.

The question comes before us now in a shape, which excludes any discovery of merits in favour of the defendant. But, if the recovery in Westmoreland was proper, or if the parole testimony admitted be true, the merits are against him.

But whether the testimony be true or not, if its admission was improper, the verdict must be set aside; unless there be other circumstances in the case, which render it of no weight, in either scale, and incapable of biassing the decision towards either side, or at least, the successful side, of the question.

I cannot therefore say, that there is but one point, the admissibility of the testimony, in this case.—For though, if the testimony be admissible, the verdict must stand, it will not follow, that if the testimony be inadmissible, the verdict must be set aside. To set the verdict aside for inadmissible testimony, such testimony ought to be also material. For if it be altogether nerveless, and there be other circumstances in the case, which would necessarily make the verdict such as it is; why set aside a verdict for admitting testimony, however incompetent, that was altogether neutral and immaterial? If the testimony should be supposed inadmissible, still the verdict must stand, if the recovery in Westmoreland must be considered here as proper.

There may therefore be too points in this case, but if either of them turn out in favour of the plaintiff, his verdict must stand.

3 T.Rep. 377

Were it necessary to give an opinion on both, I would say, that both points are in favour of the plaintiff.

An execution ousting Redden from this land, and a judgment of a court of competent jurisdiction, warranting this execution, have been shewn. It was not necessary to shew more. It was not necessary to state all the proceedings previous to the judgment. Such statement is superfluous, and, if imperfect, we ought rather to presume a defeat in the statement, than an error in the court. The court had jurisdiction, and we ought to presume a proper exercise of it. And though the proceedings had been irregular, the ouster by this execution could be no trespass. The case put, of a justice giving such judgment, is not similar. He has no jurisdiction; and though he should proceed with all the solemnities of a competent court, his acts would be void; and his officer a trespasser.

But granting, that because no trial is stated, we should believe, that no trial existed, I should hesitate greatly to invalidate a judgment, while I could not remove its effect. We are not a court of error, to correct the judgments of other county courts. A court of error could have annulled the judgment, and ordered restitution of the land. We cannot do this.

True, on this first point merely, we cannot know, that Castleman was actually to be considered as a party to the ejectment in Westmoreland; and, therefore, it may be said, he ought not to be affected by it, without an opportunity of impeaching it. And though, as between the parties, we certainly have no power to invalidate an existing judgment of a competent court of equal authority, yet, as between strangers, there seems more ground for contending the point. But, considering the nature of his engagement to warrant, was Castleman, after notice of the ejectment (and he had notice, for it is proved, that he “stood the suit”) in the situation of a stranger? Was he not competent, was he not bound, to defend it? I shall say more of this afterwards. If he did not defend the ejectment, must he not stand to its decision; or was Redden obliged to go to the dernier resort of courts of error, before he could come at Castleman? Having had judgment against his title, in a court of competent jurisdiction, must he examine all the irregular proceedings of this court, before he can call for his money? Must he bestow more money and time, in costs, expences, attendance, &c. in expectation of recovering an adequate recompence from Castleman? Perhaps he was not able, to prosecute the suit farther. Would it not have been reasonable for Castleman, if he meant to dispute the proceedings of Westmoreland court, to apply to Redden (if this was necessary) for leave to use his name, and, at his own expence, to have the proceedings set right, and the title, which he fold, fairly investigated? What are we to infer from a neglect of this? Had Redden refused to lend his name, this might have been evidence of collusion with Boniface; and collusion, or fraud, or improper conduct, on the part of Redden, would have been good evidence in favour of Castleman, against the most regular judgment; for no man can found his claim in fraud.— And though we should hold ourselves incompetent, to examine the irregularity of the proceedings of a court of equal authority, we have nothing to restrain us from examining the fraud of the parties.

Brown vs. Selwin, Co. temp. L. Talbot 240. 4 Bro. Parl. Ca. 179. Meres v. Ansel, 3 Wils 275. Preston v. Merceau, 2 Bla. Rep. 1249. Lord Cheney's case, 5 Co. 68. See also Legal v. Miller, 2 Vesey 299, and Vesey jr 404.

On the other point, I am of opinion, that the evidence was properly admitted.

It is a principle of common law; and by the statute of frauds rigidly applied to some particular cases, that parole proof shall not be received, to vary, augment, or diminish a complete deed or writing. Such proof is particularly condemned, if it affect the writing in a material part; as if, in a will, it alter the disposition of a legacy, or, in a conveyance of one parcel of land, it convey also another, or, in a lease, it vary the term or the rent. But if the proof offered tends to affect the writing only in an immaterial part; or to establish something collateral, as, in a lease, who ought to repair, or to wave part of the agreement; or, where the writing might operate in more ways than one, to shew the intention of the parties, which way it should operate; or to rebut an equity; courts discover less nicety, and will admit the proof.

The principle is found, and ought to be adhered to: for deeds and writings would be altogether useless, if they were liable to be annulled or explained away, by parole testimony. The inducement to perjury would also be strong. At the same time, the inconvenience would be great, if oversights, omissions, and mistakes, in points doubtful or collateral, or less essential, could not be remedied; and the danger of perjury, by admitting parole proofs, here, seems to be less.

Brown v. Selwyn, Ca. temp. L. Talbot 240. 4 Bro. Parl. Ca. 179. 2 Alk. 375. See Nourse v. Fineb, Vesey ju. 357-62. Meres versus Ansel, 3 Wils. 275.

2 Bla. Rep. 1249.

Legal v. Miller, 2 Vesey 299.

The application of these principles, as in all cases, where the boundaries are obscure, seems to be attended with difficulty. In one great case on this point, the master of the rolls admitted the proof, but on appeal to the chancellor, it was rejected, though, it was said, with some remorse. His decree was appealed from; but the House of Lords affirmed it. In another case lord Mansfield, at Nisi Prius, admitted the proof, and reported satisfaction with the verdict; but the court of Common Pleas rejected it, and ordered a new trial. It will, therefore, be no matter of surprise, if counsel on both sides seriously entertain opposite opinions, or if our opinion should, by one side, be considered as erroneous.

The covenant here is, in fact, a warranty of Castleman’s improvement title, against all other improvement titles. The plaintiff shewed, that a judgment was recovered against his title, in favour of another improvement title. He had then shewed enough, and needed no further proof, till the objection was made to the regularity of this judgment. The parole proof was offered to shew, that the judgment was, in fact, against Castleman, for he was bound to defend. Perhaps then, it is not refining too much, to say, that the proof was not so much directly to maintain the action, or a part of the covenant, as to repel an objection made to the contingent event, on which there should be a recovery against Castleman. Has it not the appearance of a collateral matter, as if, in an action for rent, one of the parties shewed a failure to repair, or a sum laid out in repairs, and the other offered proof, that, separately from the rent, the obligation to repair lay on him; or proof of a subsequent agreement to pull down, instead of repairing, a house found not worth repairing.

This covenant is a warranty, or agreement to indemnify. Let us confider the nature of this obligation.

A creditor, for a debt contracted by a wife, having recovered against the husband, who had a bond of indemnity against his wife’s debts, an action was brought on this bond by the husband. In this action, justice Buller says, “If a demand be made, which a person indemnifying is bound to pay, and notice be given him, and he refuse to defend the action, in consequence of which, the person indemnified is obliged to pay the demand, that is equivalent to a judgment, and estops the other party from saying, that the defendant in the first action was not bound to pay the money.”

Dussield vs. Scott 3 T.Rep. 374, 377.

1 Reeve Eng. Law 132, 167 437. 2 Reev 120, 145, 150, 185.

3 T.Rep.377.

By the antient law, if the right of land or of a chattel was disputed, the possessor might call into the action any person bound to warrant it; and the warrantor then became, in fact, the defendant, and was affected by all the proceedings. Left a landlord might collusively suffer a claimant to recover judgment against him in a real action, and, thereby, turn out his tenant, before the expiration of his term, an opportunity was allowed the tenant, to question the fairness of the recovery, and, if it appeared collusive, the execution was staid, till the expiration of his term. Lest tenants should collusively give up their possession to adverse claimants, and dispossess their landlords; landlords are permitted to become defendants in ejectment. And, in any case whatever, when a person bound to indemnify another has had notice that a suit is brought against the person indemnified, for the thing which is the subject of indemnity, it would seem, from the expressions of justice Buller, that it is the duty of the indemnifier to step into the place of the indemnified, and become defendant in his room. If he fail to do this, he seems to lose his right of obliging the person indemnified to a rigorous defence of the action, and to become himself liable to all the consequences of his neglect.

This seems to be the sensible and just method of performing a warranty or indemnification. It seems to be supported by antient and modern principles. It saves time, costs, and circuity of action, which the law abhors, and it does justice at once. And if, when the ejectment was brought in Westmoreland against Redden, he or Castleman had called on a professional lawyer, to give his opinion on this covenant, in what manner, the warranty ought to be performed, I think, his opinion would have been, that the proper, natural, and legal construction of this warranty is, that Castleman knowing the witnesses, and the merits of the title, shall take upon him the defence of the action. This is precisely the construction, which the proof shews the parties to have put on it.

Does then this parole agreement of Castleman’s, to defend any ejectment, annul the written covenant, or defeat it, or enlarge it, or diminish it, or otherwise vary it? I think not. I think this parole proof establishes the covenant, in its legal, natural, and just construction, and gives it a proper force, and honest effect. To exclude this testimony, is only to leave room to impose on the covenant a construction less natural and just, which will produce its effect indirectly and circuitously, and put all parties to greater expence, and which has not more, but rather less, the sanction of legal principles and practice, than the construction put on it by this agreement. Shall we then exclude the testimony? Do the words of the covenant exclude the construction put on them, by this agreement? Or do they necessarily or properly imply, that the warranty shall not operate, unless there were first a recovery against Redden in an action, in which Castleman should have no concern? I think not.

Therefore, I think, the evidence was properly admitted. Its admission establishes that Castleman was bound to defend in the ejectment. If so (as he had notice) the suit was his; and, whatever irregularities there may have been in it, he must abide by them. I even know not, whether, from the opinion of justice Buller (and no opinion is more respectable) it may not be fairly inferred, that the result would be the same, had no such parole agreement existed, but only notice of the ejectment, and a call to defend it.  