
    William W. Williams v. William B. Oliver.
    In an action for tlie purchase money of a lot purchased after the railroad had been constructed through it, a previous agreement in writing, not under seal, by the vendor, to convey to the Company a space through of fifty feet, if necessary, and the power to clear 'a hundi'ed feet on each side, was not allowed to be set up in discount.
    Such an agreement was not a covenant for the conveyance of the fee ; but only of an easement, or right of way.
    In discount to an action for the purchase money of land, the defendant must make out a valid, subsisting, outstanding, paramount title in another. An agreement to convey a part of the land (or, it seems, even a formal conveyance, if not duly recorded,) will not do.
    An incumbrance of which the purchaser had notice could not be discounted against the purchase money.
    Before Earle, J., at Barnwell, Spring Term, 1839.
    Assumpsit on two notes of hand drawn by the defendant, one for two thousand dollars, and the other for five hundred dollars payable to G. Perdue, or bearer, and transferred to the plaintiff.
    The consideration was certain real estate in Aiken, purchased by defendant from Perdufe, and known to the plaintiff, who had sold the premises to Perdue, and took these notes of the defendant in payment of Perdue’s debt to himself. The defence was an agreement, made by the plaintiff himself, before the sale of the premises to Perdue, with the South Carolina Railroad Company, securing to the said Company certain privileges; with a covenant on his part to convey to them a small portion of the premises on a contingency which, it was said, had happened. It was contended, that this agreement and covenant constituted an incumbrance, a subsisting, outstanding, paramount title, which entitled the defendant to an abatement from the price agreed to be given ; part of which has .been paid, this action being for the balance.
    The jury found the following special verdict:
    “We find that the notes sued on, were given to G. H. Per-due, in part payment for a house and lot in Aiken, conveyed August 6, 1834, which had been formerly sold and conveyed by the plaintiff to Perdue ; that the notes were transferred to the plaintiff in payment of Perdue’s debt, the plaintiff being present when they were drawn, and knowing the .consideration for which they were given: we find that the plaintiff, on March 12, 1830, -before the date of his conveyance to Perdue, of the premises, or any sale or conveyance of any part thereof, under or by virtue of which the .defendant derives title, made an agreement in writing, with the Railroad Company, not under seal, that if they would carry their Railroad through or contiguous to his land, in consideration of its being so carried or placed, and without any other compensation, he would convey to the said Company and their successors a space through (his land) of fifty feet in width, if so much be deemed necessary by the Company, and the power to clear and keep clear one hundred feet on each side of the road, and granting to the Company the power of entering upon and using, without molestation, said land for the above purposes, as they may deem expedient; and for the full and faithful performance of such agreement, he bound himself, his executors, administrators and assigns.
    “We find that fifty feet thus described, would include ten feet of the premises conveyed by plaintiff to Perdue, and then to defendant, along the entire front of the lot; and that one hundred feet would include part of the house erected on the lot, and used as a hotel; the entire value of the premises being estimated at about eight thousand dollars, the Company having in fact made their road through the plaintiff’s land at that place. We further find, that the house has been built since the date of the agreement of the plaintiff with the Kail-road Company; and that the defendant has been, and is now, in the quiet enjoyment of the entire premises without molestation or disturbance.
    “ If the Court shall be of opinion that the agreement of the plaintiff with the Company, of March, 1830, creates a subsisting incumbrance or outstanding paramount title, and that the defendant may avail himself of it in this action, or claim an abatement of price on his notice of discount, then we find for the defendant. If the Court shall be of a different opinion, then we find for the plaintiff the sum of three thousand six hundred and sixty-four dollars and fifty cents.”
    After argument the Court was of opinion, that the agreement or covenant of the , plaintiff with the Kailroad Company, did not constitute, under the circumstances, such an incumbrance, or outstanding paramount title, as would entitle the defendant to an abatement, and ordered the postea to be delivered to the plaintiff.
    The defendant moved the Court of Appeals to set aside this order, and for leave to enter judgment for the defendant.
   Curia, per Earle, J.

To entitle the defendant to an abatement from the amount of his note, he should make out a valid, subsisting, outstanding, paramount title to another. It requires very little consideration to perceive, and very little argument to demonstrate, that the agreement of the plaintiff, with the Railroad Company, forms no such outstanding title. In the first place, it was no conveyance transferring title by which .any interest vested in the Company; but only an executory agreement to convey; and, as it has not been executed by deed, the conveyance of the plaintiff to Perdue, and of Perdue to the defendant, vests the absolute unincum-bered fee in the defendant. Had the agreement been a deed of conveyance formally executed in 1830, but not recorded, the subsequent conveyance to Perdue and to the defendant without notice, Avould be \ralid. If the defendant purchased with knowledge of the agreement, he cannot be allowed to set it up as a defence in this action, whatever effect it may have, but must be left to rely on the warranty contained in his deed.

The terms of the instrument, however, do not seem to import a covenant for the conveyance of the fee, nor indeed, of any interest in the soil. So far as regards the fifty feet in width, if so much be deemed necessary, it seems only intended to secure the Company a right of way, a space upon which to build the road, and for the purpose of the road. It seems only to have been an easement; and as the road was in the act of being constructed there at the time of the defendant’s purchase and the conveyance from Perdue, he purchased with a knowledge of the privilege enjoyed by the Company. So far as regards the space of one hundred feet, it is perfectly obvious that the. only purpose of the intended grant was to protect the road from standing trees on either side. The ground here was already open, and, as the defendant built his house partly within the hundred feet, after his purchase, and in the face of the Company, who interposed no objection, whatever might be the nature or effect of the agreement, they could not now disturb the defendant’s possession. In addition to all this, the defendant has ever been, and now is, in the quiet enjoyment of the entire premises, without molestation or disturbance. There is, therefore, no ground, either by law or equity, on which his defence can stand. The postea was properly ordered to be delivered to the plaintiff.

See 11 Rich. 91. An.

Bellinger, for the motion;

Patterson, contra.

Motion dismissed; the whole Court concurring. 
      
       See 8 Rich. 48. An.
      
     