
    [Sunsbury,
    June 16, 1823.]
    LEEK against COWLEY and others.
    
    
      IN ERROR.
    Where a testator orders his land to be divided among several persons in a particular manner, they take under the will when the division is completed, notwithstanding they execute mutual releases.
    The daughter of the testator took under his will an estate in-fee in a portion of land, to be divided off to her by three persons; after the division she married, and, by a mistake of the scrivener, a release was executed from- the other children to the husband alone in fee simple, which purported to be in execution of the will, and contained a covenant on their part, never to claim any right in the land; the wife died without issue; held, in ejectment by the releasors, that they • were not barred of their right to the land.
    This was a writ of error to the Court of Common Pleas of Columbia county, in which the case was as follows:
    
      John Cowley and others, plaintiffs below, children of James Cowley, deceased, brought an ejectment against Peleg M. Leek, the defendant below, and plaintiff in error, for a tract of land in Columbia county. The plaintiffs claimed under the will of their father, James Cowley, who devised all the residue of his estate, real and personal, to his two sons and four daughters, (naming them,) “in the following manner, that is to say, my executors herein after named, to choose three discreet, judicious men, to divide my land into six parts, as near alike in quantity and value as eonveniently can be, and value the same, so that my said sons and daughters pay to each other the difference in the value of the said-lots of land; my daughter Bar then a to have the first choice, Mary tfae-seeond, John the third, Thomas the fourth, Martha the fifth, and Sarah to have the remaining and last share.” The testator appointed his sons John and Thom'as, and Samuel Webb, his executors. He died in 1813, and after his death, his land was divided according to his will, and one part allotted to his daughter Mary, who afterwards married the defendant, Leek, and died without ever having had issue. During the life of the defendant’s wife, if was thought proper to execute mutual releases between the children of James Cowley, in order to confirm the division which had been made of his lands. The releases were drawn by Samuel ■Webb, the executor, who conceiving, as he stated in his evidence, .that man and wife were both one flesh, drew the release of the land in dispute, from the other children to Peleg Leek alone, without mentioning his wife. Webb, who was examined as a witness, swore, that he was not instructed by the parties to-draw the release in this manner, but did it because he thought it was proper. No money was paid. The deed recited the will of James Cowley, and declared that the intent of the deed was to carry the will into effect. The consideration was one dollar. Webb swore, also, that the deed was read to the parties, but he did not believe one half of them understood its contents. The deed contained the usual words of release to Leek and his heirs and assigns for ever, after which were the following exceptions, “so that neither the said John Cowley, nor the other releasors, (naming them,) nor their heirs, nor any other persons lawfully claiming or to claim, by, from, of under them, or any of them, shall or may, at any time, or times hereafter, claim, challenge, or demand any estate, right, title, &c. of, in, or to the said messuage, tenements, land, &c. hereby remised and released, or intended so to be, but thereof and therefrom, shall, and will be utterly excluded, and for ever debarred by these presents.” Upon the death of the late wife of the defendant, the plaintiffs, who were her heirs, brought this ejectment, and the court below gave it as their opinion, that if the deed was executed under a misapprehension, the plaintiffs were entitled to recover. The jury gave a verdict for the plaintiffs.
    
      Marr and Bellas, for the plaintiff in error,
    now argued, that the court below erred in their charge to the jury, and that the plaintiffs were not entitled to recover. The plaintiffs were estopped by their covenant not to claim from ever, after setting up a right to the premises conveyed. A warranty bars the releasor, though he has no right in the lands at the time. Co. Lit. 265, a. So a covenant bars the covenantor frqm alleging facts contrary to those stated in the covenant. 10 Vin. Ab. 473. Estoppel, pl. 34, 35. The plaintiffs had no equity, for they had no right at the time of the release: the interest of this portion being at the time entii’ely in the defendant and his wife, as she had chosen it when the estate was divided under the will,' and they had respectively received an equal share. As to the mistake on which reliance is placed, it was a mistake of the scrivener, and not of the parties: there is no evidence that they mistook the conveyance. Such a misapprehension by the scrivener of the legal effect of the release is no cause for invalidating it But further: the defendant below paid ^100 towards the legacies, and would have a lien for this amount It was indispensable that this payment should have been reimbursed by the plaintiffs before they could recover in this ejectment. They cited Pickering v. Stapler, 5 Serg. & Rawle, 107. Cozens v. Stevenson, Ib. 421. 2 P. Wms. 421. 1 P. Wms. 634, 727. 2 Vez. 146, 284. 2 Rck. 592, 1 Atk. 10, 64, 399, 401. 1 Ves. 19, 400, 126. 3 P. Wms. 315, 290. 10 Mod. 451. 2 Esp. Cas. 258, 268.
    
      Grier, contra,
    argued, that on the face of the deed, independently of the circumstances attending the transaction, the plaintiffs were not barred. The intent of the deed was declared to be to carry the will into effect: and it ought to have that construction, and to be carried no further. It was unnecessary, and the mere thought of the executor, and it leaves the rights of the parties exactly where they-were before. Considered as a release, it operated only on the existing rights of the parties, even though the words embraced expressly future rights: for such words are void in law. Lit. Sect. 446. The covenant cannot be carried further than the release itself. The circumstances, however, show, that the whole originated, in the ignorance of Webb, the executor, and of all the parties concerned : and in such ease equity would grant relief. Sugd. an Vend. 111, 112. 2 Dess. Rep. S4. 2 Atk. 203. 2 Vern. 98; Mosely, 364. As to the claim for legacies,' he denied that there was any evidence on this point.
   The opinion of the court was delivered by

Tilghman, C. J.

I think thex’e can be no doubt of the right to recover. The wife of the defendant was seised of an estate in fee simple, under her fathers will, and the release was altogether unnecessary, nor could it affect ber light. The will ordered a division of the testator’s land, and pointed out the mode of dividing it. So that whenever the division was made, each child held his part in severalty by vittue of the will. Indeed the defendant’s counsel does not deny that the wife-was seised of an estate in fee, independently of the deed of release, but he relies on what he supposes to be a warranty in the deed, by which, he contends, thé plaintiffs are estopped from claiming this land. But without deciding whether there be.a warranty'or not, there is an objection which lies at the root of the deed, and vitiates every part of it. It was drawn so erroneously by Webb, the executor, who thought it was his duty to draw it in that manner, without instructions ; and was executed under so total a misapprehension of its import, that a Court of Chancery would have no hesitation in setting it aside. The releasors received no consideration from Peleg Leek, and the operation of the deed was inconsistent with its declared intent, viz: carrying into effect the will of James Cowley.

There was another point made by the defendant’s counsel. He contended, that the defendant had paid some of the testator’s debts, for which this land would have been liable, and therefore, the plaintiffs could not recover till he was reimbursed for these payments. But it was by no means clearly proved, that the defendant ■ paid debts equal to the amount of personal property of the testator’s estate, which came to his hands in right of his wifej nor was there any evidence that he had made any demand of the plaintiffs for reimbursement previous to the bringing of .this suit. The plaintiffs have a legal right to the land, and if the defendant has any claim against them, for money paid on account of the testators estate, he may haye his action against them. . I ani of opinion,' that there is no error in the record, and therefore, the judgment-should be affirmed.

.Judgment affirmed,  