
    Dickey against Schreider and another administrators of Putman.
    Friday, October 3.
    On a demurrer to evidence, every fact is taken pro confesso, which the juiy might with the least degree of propriety have inferred from the evidence.
    Where the defendant agreed on a sale of land, to refund the money, -in case the plaintiff' could not hold the land by law, hut after an action and trial at Court should lose the same, held that where án ejectment was afterwards brought for the land by one of several heirs, and after a jury sworn, the attorney of the plaintiff, (who had given notice to the defendant,) being convinced, that the title of the plaintiff was not good, fairly and bona fide made a compromise, and a verdict was taken for the plaintiff in the ejectment by agreement, the plaintiff is not bound to stand other ejectments, but may" demand repayment of his money.
    An agreement to enter an amicable action was signed by one defendant in a suit against two, stipulating, that the defendants should plead instanter: a narr. was filed against both, and plea was afterwards entered, defendant pleads, &c. the replication was, they have not performed, &c. Meld that both defendants had appeared and pleaded.
    In Error.
    ERROR to the Court of Common ERROR to the Court of Common Pleas of Bedford county.
    
      Peter Putman’s administrators, the.plaintiffs below,
    brought this action of covenant against John Dickey and William Ward, founded on articles of agreement.
    
      It was an amicable action, in which Peter Putman’s administrators were plaintiffs, and John Dickey and William Ware?i defendants, entered in pursuance of an agreement in writing, signed by the attorney for the plaintiffs, and by John Dickey, stipulating, that a declaration should be filed, and the defendants plead instanter. A declaration was filed against Dickey and Ward; and the following were entered as the pleadings. “ Defendant pleads covenants performed, “ with leave to add and alter, and leave to give the special “ matter in evidence. Replication, that they have not per- “ formed the covenants, &c. Issue, &c. 7th January, 1814, (C on motion, John Dickey pleads non infregit conventiones. Plaintiffs reply, that he hath broken his covenants, See. Is- “ sue, &c.”
    The action was founded on articles of agreement to the following effect. The defendants engaged to refund to Put-man., all money which he should pay to them for a tract of land which he. had purchased of them, together with lawful interest qn the same, “ in case the said Putman, could not “ hold the said land by law, but after an action brought and “ trial at Court, the said Putman should lose the same.” The defendants demurred to the plaintiffs’ evidence, and the plaintiffs joined in demurrer. Judgment in the Court below was given for the plaintiffs. The evidence was to the following effect.
    A certain George Fry, brought an ejectment against Put-man, for the land which he had purchased of the defendants. Putman employed' James Riddle, esq. as his attorney to defend the suit. Mr. Riddle examined the title which depended on a sale for taxes by the commissioners of Bedford county, and was of opinion, that the sale was irregular and void; and, therefore, Fry would recover in the ejectment, if he could prove that the title was in him or those under whom he claimed at the time of the sale for taxes. At Put-man’s request, Mr. Riddle gave notice of the ejectment to Dickey, and had a conversation with him, in which he informed him of his opinion of the title, in which opinion Dickey concurred. The trial of the ejectment afterwards came on, and the plaintiff, Fry, proved a title in his father George Fry, deceased, who died intestate, leaving six children. Mr. Riddle finding, that the plaintiff Fry, would certainly recover part of the land but not the whole, (because part belonged to the brothers and sisters of the said Fry,) made an agreement, that a verdict should be taken for Fry, for the whole land, on condition, that he should pay the value of the improvements which had been made by Putman, and also refund the money which had been paid for taxes. A verdict was taken according to this agreement. It did not appear, that judgment was entered on the verdict; but Fry was let into the possession of the land, and one of the witnesses said, that it was delivered to him by the sheriff. ' James Riddle, whose deposition was read, declared, that he informed Dickey of the proceedings on the trial of this ejectment, who expressed no disapprobation; on the contrary, he offered to refund to Putman one half of what had been received of him, but refused to refund that part which had been received by his partner Ward. This offer was rejected by James Riddle, the attorney of Putman. Riddle swore also, that there was no collusion between Fry and Putman, but that Putman was anxious to defend himself against Fry to the utmost of his power.
    
      S. Riddle, for the plaintiff in error.
    Each party knew, that the title under commissioners sale for taxes was doubtful ; and the agreement was, that if Putman was evicted, Dickey and Ward should refund the purchase money. But Putman consented to a verdict against him, knowing, that the person who was plaintiff in ejectment, could not recover more than one-sixth of the land. The verdict and judgment against Putman were not adverse but by agreement. No writ of possession was taken out; so that there was no eviction. James Riddle only proves, that Dickey said he knew the . commissioners title to be defective; he did not confess that Fry1 s title was good. Putman gave up five-sixths of the land to which the plaintiff in the ejectment could not make title; and for which, for aught that appears, he might never have been sued. At any rate there is a mis-trial in this case. William Ward was never a party to this suit. He never pleaded.
    
      Tod, for the defendants in error.
    
      James Riddle is to be considered as counsel for Dickey in Fry]s suit. It would be unreasonable to require, that Putman should be at the trouble of defending five other suits against a title which he knew to be good. The articles of agreement do not oblige hirn. to do it. The great point to ke established was, whether he could hold the land. A co» venantof warranty is considered as broken by proof of better tide, and the land may be given up without suit. 4 Mass. Rep. 349. Here, as there is a demurrer to the evidence, every inference which the jury might fairly draw from the evidence, is to be taken as admitted. Phill. Ev. 216. 1 Johns. 241. 2 Esp. N. P. 582, 3. Hen. & Munf. 60. 2 Tid. 782. 791. 5 Johns. 22. 1 Johns. 161. 173. Dickey admitted himself liable for one half the money, and offered to pay it. Notice of this suit was given by James Riddle to Dickey. If he did not intend to let him manage it, he should have said so.
    
      S. Riddle, in reply.
    I admit, that every fact is confessed which the jury could with any kind of propriety have inferred. But here was no fact to justify an inference of eviction; of judgment; or of verdict. There was nothing but a verdict taken by consent. The agreement stipulates expressly for a loss of the land in consequence of a trial at law. The offer of the defendant to pay one half by way of compromise, is not a circumstance from which consent can be inferred.
   Tilghman C. J.

(After stating the case.) He that demurs to parol evidence, engages in an uphill business. For, every fact is taken pro confesso, which the jury might, with the least degree of propriety, have inferred from his evidence. The Court is not nicely to weigh the evidence, and decide' according to the turn of the balance. If that were the law, the trial by jury would be destroyed. It never was intended, that by a demurrer, the Court should become triers of fact. Their office remains unchanged. Ad questiones facti, non respondent judices. This principle is well established; for the Court has had occasion to consider the subject maturely, in several cases which have occurred on demurrers to evidence. The question then will be, whether, from the evidence in this case, the jury might not have inferred the consent of Dickey, to the proceedings in the ejectment brought by Fry. I cannot say, that they might not have inferred it; for Mr.Riddle may be considered himself as acting both for Putman and Dickey, although, according to the articles of agreement, Putman bore the whole expense of the ejectment. What was done at the trial, was by no means injurious to Dickey and Ward. We must presume, that there was a strong disposition in Put-man, to withstand the claim of Fry, and that the compromise was not made, until Fry¡ had given evidence sufficient, beyond doubt, to establish his title. It is true, that Fry could not have recovered the whole land, but having shewn title in his deceased father, I cannot think that it was incumbent on Putman, according to the spirit of his agreement with Dickey and Ward, to withhold the possession from the heirs of George Fry, the father, till each of them had-brought a separate ejectment. This fighting for the ground, inch by inch, was not the intention of the parties. If Putman was under the necessity of supporting five or six ejectments, it would have cost him more than the land was worth ; and all to no purpose. I rather think, that according to the fair construction of the articles of agreement, it was sufficient, if it was proved on one trial, that Putman could not hold the land by law, (these are the words of the articles.) It does not appear, that any concession was made by Putman, in derogation of the title derived from Dickey and Ward, or in favour of George Fry’s title j or that there was any mention of a compromise, untill Fry had established his title, to the satisfaction of James. Riddle. Considering, then, that every thing was transacted fairly, and with the best intention, and that Dickey so far ratified the -proceedings as to offer to pay his half of the money, I am of opinion, that the jury might have inferred, that the land was lost after a trial at law, within the meaning of the articles of agreement. Whether the plaintiffs in this suit were entitled to recover to the full amount of the whole purchase money paid to Dickey and Ward, is not material; the quantum of damages is unconnected with the demurrer to the evidence. If the plaintiffs were entitled to any damages, they must have judgment on the demurrer, so that if even if Patinan was wrong in surrendering the whole land, yet he would be entitled to judgment, because Fry had shewn title in himself to one-sixth part, and consequently the plaintiffs should recover pro tanto.

The plaintiff in error, makes another exception. He says, • that William Ward never joined issue, and therefore the suit was discontinued in the Court of Common Pleas. This exception comes with rather an i'll grace from the mouth of Mr. Dickey, who signed an agreement for the entry of an amicable action, in which he and Ward were defendants; the agreement was, that the defendants should plead instanter, and the cause be put down for trial at the next Court. The plaintiffs filed a declaration against both defendants, the short entry on the docket is, the defendant pleads covenants performed ; replication, that they have not performed the covenants and issue. Now taking this altogether, there clearly appears a clerical error; the replication being, they have not performed, &c. I should conclude, that the clerk ought to have entered the defendants plead, instead of the defendant pleads. We know with what inaccuracy these short entries are made, and must construe them with great latitude to effect justice ; otherwise few records would stand. From a view of the whole record, it appears to me, that both defendants appeared and pleaded. I am therefore of opinion, that the judgment should be affirmed.

Gibson J. concurred.

Duncan J. concuri-ed.

J udgment affirmed.  