
    M'Donald and wife against Campbell.
    A declaration by a person under whom the plaintiff claimed land as heir, that he had sold and conveyed the land and had no claim to it, means, that he had conveyed hy writing: and cannot therefore be given in evidence by the defendant without proving, that the writing was lost.
    
      Query, Ifby otherevidence it-.appear, that a parol conveyance was meant, whether such conveyance is good without proof of possession, or payihcnt of mbney ?
    Proceedings in the Orphan's Court to sell land, cannot he given in evidence without proving title in the person as whose property the land was sold.
    In Error.
    ' ERROR to the Common Pleas of Westmoreland county, in an ejectment brought, by Mf-Donald and wife against Thomas Campbell, tenant.
    The plaintiffs in this ejectment in order to süppoft their title, gave in evidence ^location dated 3d April, 1769, in the name of William M'Ketizie,pía.‘á\e.v of M'Donald^) and a survey thereon, 20th October, 178§. The defendant offered evidence of parol declarations made by the said William M'Kenzie in the year 1784, and at sundry'other times-after-wards, “ that he had sold and conveyed the land to a certain. “ John Campbell, and had no right or claim-to the same.”This evidence,was Qbjected. to by.the plaintiffs, but admitted by the Court. On which the plaintiffs .excepted to the Court’s opinion.
    The defendant then offered in evidence an exemplification of certain proceedings in the Orphan’s Court of Bedford county, confirming the,sale of the land in questibn as part of the estate of the said John Campbell ;on the petition of his administratrix; in the year 1773, To this evidence the plaintiffs objected: but it was admitted by the'Court, and a bill of exceptions táken.
    
    
      Wilkins, for the plaintiff in error.
    1. Proof should have been given of the loss of the conveyance before parol evidence should have Wen admitted. In Richardson v. Campbell,
      
       the parol declaration of Thomas Penn, that he had sold to another person than the patentee was rejected.
    2. 'The evidence of the sale in the Orphan’s Court was improperly received : becau.se no title had been proved in John Campbell. ...... ,,
    
      
      Foster, contra.
    The nature of the estate is to be considered. It is an equitable estate. It does not appear, that the conveyance confessed by McKenzie to have been made by him was in writing. John Campbell might have been in possession, and the conveyance to him by parol. Locations have been transferred by blank indorsement. Paxson v. Price. In Irwin v. Nichols,
      
       it is said, that warrants might pass by parol. Besides the conveyances alludéd to might have been prior to the act to prevent frauds, &c. passed 21st March, 1772.
    
    
      Reply. The question is, whether, under the circumstances of this case,-a parol sale was-good. The general principle is, that parol sales of land are invalid. It lies on the defendant to bring himself within the exception to the rule. No trust or fraud is alleged. It is not a'parol sale executed in part or whole. No money was paid — no possession delivered. The defendant shewed no right in himself; but endeavoured to shew title out of the plaintiff.- . The first declaration alleged is in 1784.,: Sold and conveyed, means by writing.
    
    
      
      
        1 Dall. 10.
    
    
      
      
         Sm. Laws, 171.
    
    
      
      
         Sm. Laws, 186.
    
   Tilghman C. J.

(After stating the facts.) The question is not simply, whether the right to a .location may under any circumstances be conveyed by parol: but whether M'Kenzie's declarations are not to be understood to refer to a conveyance • by' writing. For, if the conveyance was by writing, it ought to have been produced or proof made of its loss. Now, it appears to me, that when a man says he has sold and conveyed land, the fair understanding is, that he has conveyed by writing. If the conveyance had not been by writing, he would only have said, that he had sold the land: because the bare act of sale and receipt of the consideration money would Operate as a. parol conveyance. If the defendant had given evidence of any other expressions tending to explain the words sold and conveyed, and to shew, that a parol conveyance was intended,.it would then have been necessary to consider, whether such conveyance unaccompanied with possession, and without proof of payment of any consideration money would have been good. But taking the declarations of ■M'Kenzie just as they were proved, abstracted from all other considerations, I understand him to have meant a written ■conveyance; and therefore the par.ol .evidence ought to have been admitted.

There was another exception in this case, to the admission in evidence of certain proceedings in the Orphan’s Court, shewing, that the land in dispute was sold as part of the estate of John Campbell. The decision of the first exception, involves in it the decision of the second: because unless title was proved in John Qampbell, it was improper to give evidence of any proceedings by which this land was considered as part of his estate. The title of John Campbell having fallen to the ground, the proceedings of the Orphan’s Court had nothing to support them. . I am of opinion, that the judgment should be reversed, and a venire facias de novo awarded.

Yeates J. was sick and absent.

Gibson J. concurred.

Judgment reversed, and a venire, facias de novó awarded.  