
    Vanhorn against Frick surviving executor of Frick
    Monday, June 9.
    
      Query, whether a landlord of the defendant, who lhas been active an defending theejectment, Ibut is no party on the record, ©an sue out a writ of error, and make the oath, and give the security required by law ?
    In ejectment evidence may be given to shew that the plaintiff articled to sell the land to a third person, and afterwards recovered it from him in , ejectment, for the purpose of shewing a possession in the plaintiff.
    The declarations of a person that he was authorised by power of attorney from the plaintiff to sell the land, are not evidence of such power: it should be produced, or its existence and loss proved.
    But they might be evidence to shew that the plaintiff had acted such a part as to nreefude him in equity from recovering the land.
    Parol evidence of a trial or judgment is improper; but it is admissible to prove payment after judgment.
    In Error. In Error.
    ERROR to the Common Pleas of Union county.
    Hall, for the defendant in error,
    had moved, at a prior term, to quash the writ of error in this case, because it was not sued out by the plaintiff in error.
    ■ The facts were, that the writ of error was sued out by John Montgomery, one of the landlords of Vanhorn, the tenant; but Vanhorn, alone, was the defendant on record. He had taken no active part in the business, but had suffered his landlords, John Furey, and John Montgomery, to carry on this suit. This was proved by Mr. Walts, the attorney for the plaintiff in error. Montgomery made the oath required by the act of assembly, and gave security on taking out the writ of error.
    
      
      
         2 Johns, 575.
      
    
   Tilghman C. J.

upon this evidence was of opinion, that the writ of error was well taken out, as Montgomery might be considered as the agent of Vanhorn.

Ye ates J. was of a contrary opinion.

The Court being divided, Mr. Hall took nothing by his motion.

The case upon the merits was as follows:

John Frick, the plaintiff below, in support of his title, gave in evidence a warrant to Frederick Dorsh, for 400 acres of land, dated the 8th August, 1785, and a survey thereon on the 10th of October, 1785, and a deed poll from Dorsh to John Frick, deceased, dated the 5th August, 1785. He then offered in evidence articles of agreement between the said John Frick, deceased, and Jacob Bossart, dated 10th January, 1793, whereby Frick agreed to sell this tract of land to Bossart, for a certain sum of money, payable by instalments, and also offered in evidence, the record of an action of ejectmeiit, brought by Frick against Bossart, wherein the said Frick recovered, from the said Bossart, possession of the' same land. This evidence was objected to by the defendant, but admitted by the Court; whereupon an exception was taken.

Vanhorn the defendant below, claimed under the same warrant and survey which had been given in evidence by the plaintiff. He also gave in evidence a deed poll from the same Frederick Dorsh, the warrantee, to Samuel Quinn, dated the 1st May, 1789, and a deed from the said Quinn, to John Furey, dated the 11th November, 1795, and'a patent to Furey, dated the 27th February, 1796.' 1'he parties did not agree that both deeds from Frederick Dorsh were genuine. Whether either of them, and which, was forged, was left to the jury. The case which the defendant endeavoured to establish by parol evidence, was as follows. That Frederick Dorsh tKe warrantee, was a trustee for John Frick, Thomas Gaskins, and Samuel Quinn. That Frick purchased Gaskins’s share, and ¿lien authorised Quinn to sell all his interest in the land. That Quinn accordingly sold the whole tract to Furey r who paid the consideration to Quinn, part in money, and part in promissory notes, drawn by the said Furey, and indorsed by John Anderson. That Frick, being informed of the sale, approved of it, and acknowledged that he had given Quinn a power of attorney to sell: but, at the same time, expressed his fears, that he should not get his money of Quinn, and therefore requested Furey to refuse payment of the promissory notes. Furey, accordingly, did refuse, and gave notice by public advertisement, that he had received no consideration for the notes ; but being sued, and judgment obtained against him, after a trial and verdict, he paid the whole money. To several parts of the parol evidence, the plaintiff objected, and, in some instances, the objections were sustained by the Court below, and the evidence rejected. This occasioned four bills of exceptions on the part of the defendant, besides the two exceptions beforementioned. They were all nearly of the same nature, and the substance of the rejected evidence was, “that Samuel Quinn, at Philadelphia, “ in the year 1795, shewed to James Davis the draft of several tracts of land, among which was the tract now in dis- “ pute, and requested him to find a purchaser. Some time “ after this, John Furey came to Philadelphia, and informed u the said Davis, that he wished to purchase some land on the Susquehanna, that the said Davis acted as an agent for “ Samuel Quinn, who informed him, that he had a power “ of attorney from John Frick, to sell and convey a number “ of tracts of land in Northumberland county. That the said « Davis saw Furey give his notes to Quinn, for the residue of «the purchase money of the land in dispute(The Court having permitted evidence to be given before of the payment of about 90 or 100 dollars, in part,) “ and that John Frick, “ after being informed by the said Davis, of the sale made “by Quinn to Furey, and the payment by Furey to Quinn, “ acknowledged, that he had given to the said Quinn, a “ power of attorney to sell the lands, but was afraid Quinn « would make away with the money, and that he, Frick, “ would get nothing from him. That Frick also acknow- “ ledged, that after several trials, Furey had been obliged to “ pay the money due on his notes.”

Watts and Duncan, for the plaintiff in error.

1. We object to the Court’s allowing to be read in evidence the articles of agreement between Frick and Bossart, because no act of Frick’s could make his title better or worse against Furey.

2. We object also to the record of the ejectment against Bossart, because the defendant was no party to that suit, nor does he claim under Bossart.

3. The confession of Frick was good evidence even to prove a power of attorney in writing; because the sale was not made by virtue of a power of attorney, but by virtue of Dorsh’s deed. The power of attorney was a matter collateral to the title. The evidence went not only to prove a power of attorney, but an authority which might not have been in writing. The confessions of Frick were good evidence also, because they went to prove a fraudulent concealment by him of his title, by which an innocent purchaser was affected. If he objected to the sale, he ought to have declared that Quinn had no power to sell; instead of which, he expressed his satisfaction at it, a short time after the sale. If an agent sells without a written authority, and the principal gives reason to the purr chaser to think the tide good, equity will confirm the title. Sugden, 66, 67. In Niven v. Belknap, parol evidence was admitted to prove, that one who had the legal estate had" told .another, that he had given a third person power to sell, in consequence of which a purchase was made from that third person. On what principle was evidence rejected, that Frick had confessed, that Furey had given his notes for the residue of the .purchase money, after evidence was given of payment of part? They also cited 5 Bac. Ab. 48. Mortgage, A. 2 Binn. 245. 6 Finn. 328. 5. Vin. 522. pl. 34, 35.

Bellas and Hall, contra.

1. and 2. The evidence of the agreement with Bossart, and recovery against him in ejectment, were proper to shew that Frick retained the possession of the land, except during the time when it was in Bossart's possession.

3. The confessions of Frick, as. to his having given a power of attorney to Quinn, were inadmissible in evidence. If the power of áttorney was in writing, it ought to have been produced ; or some account given of it. Before even a copy can be received of an original writing, its existence and loss must be proved. 5 Binn. 274. 6 Binn. 227. 234. 237. If the authority was not in writing, it could not bind the estate. Act against frauds, 1 Smith's Laws, 389. A parol confession is not sufficient to pass lands, 1 Smith's Laws, 393. 6 Johns. 21. As to the confessions, relative to the notes, they ought to. have been produced if they were paid. They also cited Sugd, 58. 62. 5 Vin. 524. pi. 45. 7 Johns. 186. 1 Fonbl. 164. 270. 1 Binn. 450.

Tilghman C.-J.

The defendant’s counsel objected to the evidence both of the article of agreement,, and the record of the ejectment, on the ground, that as the defendant did not claim under Bossart, the transactions between Frick and Bossart could have no effect on his title.' In general this is true. But it was material for the plaintiff who had obtained no pa.tent for the land in dispute, to shew, that Frick was in possession ; because this possession might operate as notice of his title under the warrant survey and' deed poll; or at least it might be sufficient notice, that he had some title, which it behoved strangers to inquire into, before they purchased ' from any other person. I agree, therefore, with the Court of Common Pleas, that the articles of agreement and the record of ejectment, were good evidence, to shew the possession of John Frick, deceased.

[Here the Chief Justice recapitulated the facts of the case as before stated.J

As to any thing said by Quinn, with respect to his being authorised by Frick to sell this land, the evidence was properly rejected. The authority was said to be by power of attorney, and ought to have been produced. But the declarations of Frick, made to Furey, after the sale,» turn on a different principle. These declarations could not be admitted. in evidence, for the purpose of proving the contents of a written power of attorney, without first proving the existence and the loss of the power, which in this case had not been done. But they might be evidence, if they tended, to shew, that Frick had acted such a part, as would preclude him in equity from recovering this land. Now according to Frick’s own pretensions, he had received from Dorsh the warrantee, a deed of conveyance of the whole tract, which, not being on record, was unknown to Furey; so that Furey might be deceived by the second deed from Dorsh to Quinn for the same land. It was, therefore, his duty, on receiving information of Furey’s purchase, to disavow the sale, if he meant to dispute it. But instead of disavowing, he confirmed Furey in his error by acknowledging, that the sale was made by his own authority. In consequence of this, Furey went to the farther expense of patenting the land in 1796. All these circumstances, if well proved, make a case which in equity would bar Frick’s recovery. The evidence ought, therefore, to have gone to the jury. I think, too, that the evidence of Furey’s paying the residue of the purchase money in his own notes, indorsed by Anderson, ought to have been received, and also the evidence of his ultimately paying those notes. The Coui-t permitted evidence, that part of the consideration was paid in money. Why then should the evidence of payment of the residue be refused? It was proper to reject parol evidence of a trial or judgment. But payment after judgment, was matter in pais, and proveable by parol.

Some mention was made, of exceptions to the charge of the Court. But that charge not being on the record, we can tak<. ■■ notice of it. My opinion, on the whole, is, that the judgment should be reversed, and a venire facias de novo awarded.

N. B. Judge Yeates, (deceased,) concurred in this opinion, but died before it was delivered.

Gibson J. concurred.

Duncan J. gave no opinion; having been counsel in the cause.

Judgment reversed, and a venire facias de novo awarded.  