
    [Sunbury,
    July 2, 1827.]
    MARTHA COOK, Executrix of WILLIAM COOK, against GEORGE GRANT.
    IN ERROR.
    A devisee who releases all interest under a will, is a competent witness for the trustee appointed by it.
    If a vendor on a contract of sale conceal the fact that part of the land contracted for belongs to a third person, it is a fraud. _
    _ The covenant of warranty by such person, contained in a deed afterwards made by him in favour of the vendee, is not an equivalent for the covenant of the vendor.
    If such third person delay executing the title, declaring he would keep the land, or convey it only on certain terms, his conveyance at a late day will not entitle the vendor to relief.
    If such third person, by collusion with the vendee, swear in a judicial proceeding, that the contract of sale is at an end, neither can afterwards set it up against the other.
    Error to the Court of Common Pleas of Northumberland county
    
      Scire facias of a mortgage on four tracts of land therein specified, dated 23d of May, 1814, given by George Grant to William Cook, to secure payment of three bonds, amounting together to sixteen thousand nine hundred and ninety-nine dollars and ninety-nine cents, the first payable on the 1st of May, 1815; the second, on the 1st of May, 1816; the third, on the 1st of May, 1817, all bearing interest from the 1st of May, 1814. On this mortgage several payments had been made, and there were some judgments remaining a lien upon the estate of William, Cook, sen., deceased, part of whose estate was the land mortgaged, the whole amount of which the plaintiff consented should be deducted from the amount of the mortgage, being willing to look to the other devisees of William Cook, sen., for the contribution of their respective parts. As a defence to the scire facias, it was alleged, that the consideration of this mortgage was five tracts of land, containing in the whole about five hundred acres, and that one of them of about one hundred and fifty acres, called the M'Cully tract, the defendant had no title for. The plaintiff tendered and filed a deed in court for this tract. It was in evidence, that it was left out of the deed to George Grant, and left out of the mortgage given by him to William Cook, with the consent of all the parties concerned.
    The reasons assigned for leaving out the M'Cully tract were, that Alexander Colt, at the time of the delivery of the deed had some claim to it, and that the legal title to it was vested in James Lemons, the father-in-law of William Cook.
    
    The defendant offered as a witness William Grant, who was objected to by the plaintiff’s counsel. In support ef the objection’ they read the will of Thomas Grant, bearing date 12th of May, 1815; from which it appeared, that the five tracts of land above-mentioned, were held by George Grant, in trust for his father, Thomas Grant, who had advanced all the purchase money which had been paid. He directed his executors to pay the residue of the purchase money, and that the said five tracts be subject to the general division to be made among his children, of whom William, the witness offered, was one. In order to remove the objection to the competency of the witness, the defendant read to the court a release, dated August 25th, 1825, by William Grant and wife to his mother Deborah Grant, of all his interest in his father’s estate, and contended that being no longer interested, he ought to be received as a witness. The court, however, rejected the witness, and at the request of the defendant’s counsel, sealed a bill of exceptions.
    The plaintiff tendered to the defendant in open court a deed, dated August, 25th, 1825, from James Lemons and wife to George Grant, for the M'Cully tract.
    
      James Lemons was then sworn, who testified that he was present when the deed and mortgage were exchanged, and the 'money paid. One reason why the M‘Cully tract was not included in the deed was, that Cook had previously sold part of it to Alexander Colt, and the witness wished a settlement with Colt, lest Cook should be prosecuted for selling the land twice. He also wished the price of the M‘Cully tract fixed in such a way that Cook eould not spend it. He took Thomas Grant out and told him, “he wished the money secured;” but he did not recollect that Grant refused the deed until that tract was put in. The witness was satisfied with the sale made by Cook, and was present when the deed was made, and the papers securing the dower of Mrs. Cook. A settlement was afterwards made with Colt, who had begun to build a mill, and had part of the race dug. He did not know of any particular delivery of possession to Grant. He had nothing to do with the land since. Never rented it or received any of the proceeds. A good part was cultivated. When Cook sold it, to Grant it was leased to Furman, afterwards to Fries and Gaskin. After Cook moved to Bloomsbury, the witness acted for him in presence of Mrs. Cook, and in his absence had a power of attorney from him. He was present at a calculation made by Mr. Priestly and John Cook, in the presence of George Grant and William Cook. They were appointed by George Grant and the witness; at the time appointed J. Priestly, John Cook, George Grant, William Cook, and the witness attended. William Cook’s mind was at that time very weak, and the witness acted for him. They went over the accounts, receipts, &c., and a statement was made out by J. Priestly on the 16th of April, 1821. Something was said by George Grant about the deed for the M‘Cully tract, and the witness said he might have it at any time. The witness frequently conversed with George Grant about the M'Cully tract, and said, he might have the deed for it at any time — offered it before the witnesses. He said he would not give a cent for any title that was in me. About the time that suit was commenced on the mortgage for Mrs. Cook’s dower, after its commencement, the witness told him he ought have the title for the M'Cidly tract. George Grant told him not to give him the title, that he wanted to defeat Simpson. Afterwards when the witness said to him the same thing, he said, “ I bought no land of youN
    About the time of the arbitration in this suit with Simpson, the conversation took place, in which Grant asked the plaintiff not to make a deed. The witness then told Grant, be ought to have the deed for the M‘Cully tract. Grant told him, no — not to give it to him now; he wished to defeat Perry Simpson. When we were laying a plot to defeat Simpson, it was at the place of the arbitration; no one was present but Grant, Hepburn and Simpson. George’s title was spoken of, and of the witness having the title to the M'Cully tract. Mr. Hepburn did not like to engage in it. There was no plot: he seemed to be afraid to go on with the suit. I advised him to go on, and said, he could not fail to gain it.
    The witness told Thomas Grant privately, he wished the proceeds of that tract might be secured to the wife and family of William Cook: he was satisfied, and the money was paid. A bond was deposited with Captain Boyd to secure the dower of old Mrs. Cook. Thomas Grant pulled out of his pocket part of the money. George had part. The witness paid one hundred and eighty-six dollars for the M‘Cidly tract. In 1811, Mr. Cowden swore it was worth ten dollars, and the witness thought it a high price.
    
      John Hannah testified, that Cook told him in the winter of 1814, he had sold all his possessions in that property to George Grant. After Cook moved to Bloomsbury, Lemons said, that William Cook had been to George Grant to receive a payment, and he had received a payment and gone to Bloomsbury, and he was informed that several persons had gone from Sunbury after and with him, to get him to gamble, and get the money out of his hands; and it was his opinion the money would never do him any good — that there was part of the property, the title to which was in him — that if he got the mill, all the rest he was to take care of, and keep that for his wife and children. Lemons said he was present when the survey was made of the land sold to Alexander Colt — that he went along with them till they interfered with the M‘Cidly tract, and he then told them to stop.
    
      William Wilson testified that he was present when Cook and Grant first made the bargain; they had concluded so far as that Grant offered him two thousand dollars.
    
      They then went to Mr. Hamilton's room. The number of aeres ■was mentioned. -Grant -said, if there was so many acres he would .give two thousand one hundred dollars. /Cook replied, there were :five hundred acres good, if not more. They went to Hepburn -to draw the article, but he would not’ for fear of. the forfeiture — there ■ was to be a deduction in proportion to the-quantity.wanting. The article was then finally-agreed on, but no article was drawn.
    
      Lemons told the witness he had-.purchased-the tract of land that was sold as' William Cook's, and he had the deed in his pocket, and he would never make it over to’ Cook, but keep it for his wife -and children, after Cook had spent all he had. He showed me the deed signed Daniel .Lebo, sheriff. I was present when Lemons said he should fix a day to go up and make him a deed; and Grant • said he had bought no land of him.
    A power of attorney, dated August 29, 1820, was then produced from William Cook to James Lemons.
    
      George Kremer testified, that Lemons said he had purchased the M‘Gully tract, but he never meant to make any thing by it; that he was present when the sale was made to -Grant. He said-he was perfectly willing to convey, but wanted the money arising-Trom • the sale' secured to-Mrs. -Cook's.family; and-asked my advice, whether-he was bound to convey until' it-.was'secured; that the title was in him, and-he had consented to the sale. I gave him my decided opinion, that he was bound to convey.
    
      Jacob Cook, a witness for the- defendant, stated, that Lemons told him he was on the jury when the M‘Cully tract was condemned. After the M'Cully tract was struck off to him, he gave the, crier one dollar, which made one hundred and eighty-six dollars: he intimated that-he would have the deed — he did not-know what had'got into my father’s and mother’s head to suppose Bill -■■Cook's money had bought the land — his own money paid for it. .-He said, he “paid for the land — he had the deed, and would keep it.”
    
      Jacob' Tann testified, that.Lemons said he was glad he had the deed for the ■M'Cully tract — he would have that at all events, •for the widow and children, if he should lose the rest-in the trial between Stedman and him.
    
      JLlban Newberry testified, that Lemons told him, William Cools was spending his money as fast as hie could — -that .-George Grant had better be cautious about paying the money for-this tract, as one part.of the title was in him, and he intended to.keep it for his daughter. The defendant then offered the administrationaccount of Thomas..Grant, executor of -William'Cook, dated 23d. óf Janua■ry, 1810. Balance due on account three hundred and twenty-six dollars and thirty-five cents. The plaintiffs objected, and the court sustained the objectionyand at the defendant’s.instance-sealed a bill of exceptions.
    
      
      John Cowden testified, that Lemons told him he would not make title to Grant for the M'-Cully tract — that he intended to keep it, for he thought his son Cook was not doing well, and would run through the property, but that he would save that for Mrs. Cook and the children. He said this several times, both before and after the sale to Grant. Did not say the proceeds, but the land itself. Grant was not present at any of these conversations.
    
      Jeremiah Simpson testified, that at the arbitration in the suit James Lemons for the use of Sarah Cook v. George Grant, in July, 1833, Lemons was produced as a witness — he came forward with a deed in his hand, and laid it on the table — said he had purchased the property, meaning the M‘Cully tract, and paid for it, and meant to hold it. There was a short instrument drawn up, proposing that James Lemons should convey the tract to the defendant, Grant; and on the heirs of William Cook, senr., deceased, agreeing not to demand any money that Grant should pay to Sarah Cook, he should immediately pay Sarah Cook six hundred dollars. It was refused by Lemons, who said he was not to convey it — had paid for it, and would hold it.
    
      Henry Masser was an arbitrator in the case of Mrs. Cook v. - George Grant,, for the widow’s dower. Lemons was a witness: he brought a deed for part of the land purchased by George Grant of Cook. He stated he hád a title for it — he did this to defend George Grant from paying the whole dower. Pie was sworn, and had the deed in his hand — -he said he would not give it up till he was satisfied. This arbitration was in 1833.
    
      James Lee, also an arbitrator, stated that Lemons said he meant to keep the M‘Cully tract for the widow and heirs. George Grant said, if they would make him a title to the property, he would pay Mrs. Cook six hundred dollars — Lemons said he would not give it up.
    The deposition of Mrs. Cook proved that Lemons said, he would keep the M‘Cully tract for Martha Cook and her heirs.
    The plaintiff, to rebut, produced Daniel Qarion, who proved that he lived on the M'Cully tract, as tenant of Grant, four years last JLpril — Peter Fries lived there before him; he did not know under whom.
    
      John Boyd and Mr. De Gruchy, proved that there was an amicable reference between William Cook and George Grant, about the possession of the M'-Cully tract, and the referees allowed him three hundred and thirty-three dollars for being kept out of possession. Both were satisfied. Lemons was examined as a witness, and there was no complaint that he would not to make title.
    
      P. Lemons. — I was present after the calculation of Mr. Priestly and John Cook was made. My father said he was ready to give him a title at any time. Grant said he would not to give a cent for any title he had-^he had bought the land of William Cook, not of him. My father has never been in possession since. He said he wished that tract to go to the benefit of Cook's wife and children; always said it should not be divided among his other heirs.
    
      James Hepburn. On a former occasion some years before, George Grant demanded a deed from Lemons, who turned on his heel — turned from the subject.
    The President of the court below charged the jury, among other things, as follows:—
    The reasons which have been assigned forleaving out this M'Cully tract were, that Alexander Coll, at the time of the delivery of the deed, had some claim to this tract, and, that the legal title for this tract was vested in James Lemons. It, therefore, became necessary for William Cook to extinguish the claim of Colt, and procure a deed from his father-in-law, James Lemons, to complete a title to George Grant. It is in evidence, that William Cook extinguished the claim of Alexander Colt. There was then no obstacle but for Lemons to convey: he was willing to convey upon the amount being secured to Mrs. Cook and her children. It is in evidence, that James Lemons was present at the delivery of the deed and mortgage; that he assented to the sale made by his son-in-law, William Cook, to George Grant; that he saw the first instalments paid by Grant, and bonds given for the balance. Possession of all the five tracts was taken by George Grant; he has held possession ever since, and a deed is now brought into court, and tendered to George Grant, and filed. George Grant recovered by a reference three hundred and twenty dollars, as a consideration for his not obtaining possession of the M( Cully tract as soon as he^ was entitled to it. James Lemons standing by, and seeing his son-in-law, William Cook, sell a tract of land to which he had a legal title, and, not objecting, Lemons would be postponed. Of this fact the jury will determine. A parol contract for the sale of land, the purchaser paying part of the purchase money, giving bonds for the remainder, and the purchaser taking possession and holding possession, is a part execution of a contract which cannot be rescinded without the consent of both parties; nor is such a case within the statute of fraud and perjuries. Upon the one hand, George Grant is entitled to a legal title, and the plaintiff to her money, which would be a compliance with the contract. If George Grant had tendered the purchase money, and demanded his title, and it had been refused to him, it would have presented a different case.
    The court are of opinion that the tender of" the deed, and filing it in court., is sufficient to entitle the plaintiff to recover the purchase money. But if any legal objection could be made to the acceptance of the deed from any defect of title, or a want of proper warranty, the court could stay éxecution, and would do it until the title was completed. There has been a great fall of property since this purchase. It would appear that the Grants gave an extravagant price* for this land, and every person must commiserate their situation. But whether land rises or falls in price, the court has no power to alter the contracts of the parties; - If it was not in the power of ' the plaintiffs to make a title for the M'Cully tract,-the court would ' direct the jury to-deduct the value of this tract from the purchase money of the mortgage; but there was no evidence before the court but what Lemons-can make good the title; and if the deed filed in the court does not convey a good title,.the court could stay execution until every defect, ifany, is remedied.
    The defendant requested the court to charge the jury as follows:
    1. That, as there-was no contract between James Lemons and George Grant, for the M‘Cully tract, there could be no part execution of contract-in the present casej and that this is not a case of partexeeution of contract.
    . 2. That James .Lemons has done no act by which he would be
    bound to-convey to Grant, that, as- he is- not bound, Grant' also is not bound.
    3. -The Court-are requested to state by what act or acts, if any, Lemons is bound to convey to Grant the M‘Cully tract.
    4; That James Lemons, in an ejectment, might legally recover possession of the M'Cully tract; nor has he done a single act that would prevent his recovery.
    5. That, if the jury believe that Lemons would not convey without settlement on Cook’s wife,-the taking possession of Grant, under Cook, was a trespass, and no part execution of the contract.
    6. That Cook is nota bona fide contractor, and not having tendered a deed to Grant, during his life; and procured no title from Lemons, his representatives cannot recover for the M‘Cullytract; and,
    7. ' That the will of Thomas Grants imposes no -burden on-George Grant to pay this money.
    The court gave the following answers:
    1. James Lemons assenting to the contract made by his son-in-law, (if the jury are satisfie'd-he did assent;) his standing by, seeing Grant pay part of the purchase money,, give his bonds for the remainder, giving possession to George Grant, James Lemons would be bound to convey, and these acts would be a part execution of the contract.
    2. In every contract, there must be a reciprocity, so as to be binding on each party; and Lemons, by assenting to the contract made by his son-in-law, William Cook, with George Grant, is bound to convey to George Grant,
    
    3. In answer to the first point, the court have answered this point. . '
    
      A. James Lemons, by assenting to the contract made by Cook 
      with Grant, could not support an-ejeetment against George Grant, except for the recovery of the purchase money.
    5. If the jury believe- George Grant took possession of the M'Cully tract, by the consent of Lemons and Cook, he is not a trespasser. It was in Cook’s-power to secure to his wife and children, at any time, the amount of-the M'Cully tract; and upon his so doing, Lemon could have made a deed. Cook died, and devised his estate to his wife and children.
    6. Cook did not, during his lifetime,-tender a deed; nor did Grant tender the purchase -money, as appears from the evidence. The representatives of Cook, stand in the situation of Cook, in his lifetime, and if they fulfil'their contract, he would be obliged to fulfil his contract.-
    7. George Grant is an executor of his father’s estate; his father, by his will;-;directs this purchase money to be paid out of his estate. This would impose an obligation on his executors to pay the money, unless some legal objection could be made to the payment-of the money.
    The defendant excepted, and now assigned as errors:
    1. There is error in the first bill of exceptions.
    2. Also in the second.
    3. Also in the answers to the points.
    2. There is error in the court stating, that the plaintiff had a right to recover, on tendering the deed and filing it in court; and, that the court could stay execution until the deed was perfected; as a lender of the deed was necessary for ihe-M‘Cully tract, before the-commencement of this suit.
    5. The court erred in stating, that it was necessaryfor George-Grant to tender the purchase money.
    
      6. In stating that George Grant was entitled to the legal title, and the plaintiff to her purchase money.
    
      Green, for the plaintiff in error.
    
      First bill of exceptions.- — Refusal of the court, to admit William Grant as a witness for the-defendant. William Grant released all his interest in his father’s estate to his mother, Deborah Grant, and therefore was no longer interested.
    
      Second bill of exceptions. — The court rejected the administration account of Thomas Grant, executor-of William Cook.
    
    
      Charge of the court. — The plaintiff .ought to make allowances for one hundred and fifty acres of land, (the MWully tract,) to which his testator had no title, and-was unable to procure a title during.his life,-because L'etoions,' who bad the title, refused unless the price of these one hundred and fifty acres was secured to his daughter. Cook acted mala fide, in contracting to sell land which he did not own. Sugd. Vend. 158. 1 Madd. Ch. 415. 1 Johns. Ch: 3-70.
    
      Cook was to have given a general warranty, as-may be inferred from his general warranty in his deed, conveying the other lands. Cook is dead, and the general warranty cannot be had, nor did the deed from Lemons, which was tendered, contain a general warranty.
    The court erred in saying that Lemons could not recover against Grant, because he stood by and saw his son-in-law make the contract; whereas the evidence was, that Lemons told Grant, at the time, that he would not convey this land, unless the price was settled on his daughter. Grant, at least once, demanded a deed, and Lemons refused to give it. Nay, he swore before the arbitrators, that he would not do it. Cook did not comply with his contract during his life, and we say, that on his death we may consider the contract as rescinded.
    There was error in the court’s answer to our points.
    
      First point__There was no contract between Grant and Le-
    
    
      mons, and, therefore, we could not compel Lemons to give us a deed.
    
      Second, third, and fourth points. — Lemons had aright to recover this land in an ejectment, because he had done no act to bind himself, unless the money was secured to Mrs. Cook.
    
    
      Fifth point. — Grant might be considered as a trespasser, by entering on Lemons’s land.
    
      Sixth point. — This point was, that as Cook gave no title to Grant during his life, his representatives had no right to recover the purchase money after his death.
    
      Fourth error assigned. — The court erred in saying, that the tender of the deed, pending the action, cured all defects, and took away all equity from the defendant. ■
    
      Greenough, for the defendant in error.
    
      Thomas Grant, (father of the defendant,) made his will about a year after date of the defendant’s mortgage, and devised the property purchased in the name of the defendant, among his children. After this, the defendant claimed before referees, and had an allowance for the profits of the M‘Cully tract for several years, which was under a lease made by William Cook, before the defendant purchased of him. Afterwards, at the defendant’s request, Lemons, before referees, in a suit between old Mrs. Cook and the defendant, declared that he would not convey the M‘Cully tract. This was done, in order to defeat Simpson, who managed this suit as Mrs. Cook’s friend.
    
      First bill of exceptions. — To the competency of William Grant, as a witness. William Grant was an executor of his father, Thomas Grant, and had settled no account. lie was answerable to Thomas Grant’s creditors for the rents and profits of the real estate, because the will ordered the executor to pay his debts, in the first instance.
    
      Second bill of exceptions. — Rejection of administration account of Thomas Grant, executor of William Cook, the father, of the testator. This account could not be evidence. It was offered to show, that the balance due to Thomas Grant, on a settlement of his administration account, was a lien of this land. But we agreed that all liens should be deducted from .our claim, so that there was no dispute on that point. Chancery will give time to complete a title, especially where the purchaser knew of the defect of title. Sugd. Vend. 285. 2 Johns. Ch. 519. Frick v. Vanhorn, 3 Serg. & Rawle, 282. 10 Serg. & Rawle, 140. Chancery would not relieve the defendant, because he knew that the M'Cully tract was not included in the testator’s (Cook’s,) deed to the defendant, and made no objection. 2 Johns. 575. James Lemons was privy, and consented to the contract of sale; and, therefore, could not defeat it by setting up title to part of the land. George Grant kept possession, of the M‘Cully tract till the death of William Cook, and after. William Cook (the testator,) died in October, 1821. His father died in 1804.
    
      Bellas, for the defendant in error.
    The M‘Cully tract was sold by the sheriff, on a judgment against the executor of William Cook, the elder. James Lemons, the father-in-law of William Cook, (the plaintiff’s testator,) bought it for one hundred and eighty dollars. Thomas Grant died in June, 1815.
    
      First bill of exceptions. — William Grant was prima facie interested, and it lay on him to show that he was disinterested.
    
      Charge of the court. — Neither Thomas nor George Grant was deceived by Cook: the only person deceived was Cook, who knew nothing of the private conversation between Lemons and Thomas Grant, when the deed of conveyance was given. Chancery would never relieve Thomas Grant, who was privy and consenting to the-whole transaction. Lee v. Porter, 5 Johns. Ch. 268. Murray v. Finster, 2 Johns. Ch. 155. Id. 275, 288. When the plaintiff has legal title, it is sufficient if he does equity during the trial. Moody v. Vandyke, 4 Binn. 31. 5 Cranch, 262. 1 Wheat. 179. 9 Serg. & Rawle, 87.
    In 1822, the defendant was examined as witness in a suit between Stoolman and Cook, and stated a large balance due from himself on this mortgage. If one means to rescind a contract, he must do it speedily. 17 Johns. 437. 3 Johns. Ch. 23. One who remained in possession, was held to performance of contract, after fourteen years. 9 Johns. 450.
    
      Marr, in reply, for the plaintiff in error.
    
      First bill of exceptions. — Rejection of William Grant. [The court told Mr. Marr, he need not speak to this.]
    
      Second bill of exceptions. — Rejection of the administration account of Thomas Grant, administrator of William Cook, sen. This account showed a balance in favour of Thomas Grant, which was a lien on the estate of Cook, the elder, and consequently on the mortgaged premises.
    
      Charge of the court. — The whole charge is erroneous. It took the cause from the jury. The contracting parties, were William Cook, the younger, anGeorge Grant. Thomas Grant and Lemons had nothing to do with it. The defendant’s bond and mortgage were given, on a promise by Cook to make a conveyance in a short time, of the Cully tract; therefore the mortgage was void. ■ Lemons never promised or intended to convey, unless the price of these one hundred and fifty-acres were settled on his daughter, (William Cook's wife,).and Cook refused to make a settlement. I consider this suit as being for the use of James Lemons. .Lemons refused to convey when the defendant-asked him. Land was then high — now it has fallen. There is said to have been a tender of conveyance of the M'Cully tract, before commencement of this suit. - We say, that the defendant owes but seventy dollars, independent of the price of the M'Cully tract.
   The opinion of the court was delivered by

Gibson, C. J.

William Grant was undoubtedly a competent witness. He had divested himself of all interest, and this is all ■ that is necessary to be said in regard to the first point.

As the cause is to be tried again, it will be more useful to point out the principles on which it depends, and which appear to have been misconstrued, than to enter into an analytical examination of -the errors assigned in the opinion1 of the judge on the points made •‘below; and, for this purpose, it is necessary to trace the features of the case as it appeared on the evidence.

In 1814 George Grant entered into a parol agreement with ■ William Cook, to purchase five tracts of land, at the price of sixteen thousand nine hundred and ninety-nine dollars and ninety-nine cents; and shortly afterwards, ■ Grant, attended by his father, Thomas Grant, and Cook, attended by his wife’s father, James Lemons, met together to execute the contract.. Four of the tracts were conveyed, and bonds and a mortgage executed for the purchase money of the whole five. Why the remaining tract was -not conveyed, will appear in the sequel. " The mortgage recites the bonds and the conveyance of the four tracts; but nothing is ■said of the fifth, denominated the M‘Cully tract, as regards which, the contract still rests.on parol: and the action is brought on the mortgage to recover the price of this last-mentioned tract, the price of the others being nearly,--if not. altogether paid.

Possession of the tracts conveyed, was delivered in -season, and of the M‘Cully tract some time afterwards;. Grant accepting a sum of money in compensation of the delay. At the trial, Lemons tendered a deed for the M‘Cully tract, executed by his W’ife and himself, but without warranty; on-which the court charged, that the plaintiff was entitled to -recover. Evidence of other eircumstances, thought to be material, was given (luring the trial, and will be noticed in the course of the inquiry.

What are the principles of the action to recover the price of land? It was formerly thought, that as the vendor wants nothing but the purcháge money, which may be recovered in an action of debt, his remedy is exclusively at law, (Sugd. Vend. 164,) and undoubtedly an action lies.' But, it having been thought proper to execute the contract specifically, it was supposed that justice required the remedies between the parties to be mutual, and in the same courts; consequently, a bill will be entertained to enforce payment of the purchase money. (Newl. Cont. 91.) But, in an action on the contract, even the English courts take cognizance of equitable objections, (Sugd. Vend. 178;) and, in Pennsylvania, where we have no separate court to control the exercise of legal rights, there is still greater reason for doing so. Accordingly, in Huber v. Burk, (11 Serg. & Rawle, 238,) it was held, that an action for purchase money is in effect a bill in equity; the purchaser being at liberty, under the plea of payment, to give evidence of any circumstance that would actuate a chancellor to withhold his assistance. In the case before us, therefore, the action is to be viewed as a bill to execute a contract, already so far executed as not to be within the statute of frauds.

The inquiry then is, whether enough has been shown to induce a chancellor to dismiss the bill. The intrinsic evidence of the transaction, as well as the testimony of- Lemons himself, proves incontestibly that he, and not Cook, was the actual vendor of the M'Cully tract. He was the owner of it, and it was well known that no one else could convey it. He also exercised a superintending power over the agencj' of Cook. He says he knew of the sale, and approved of it; and the reason this tract was not conveyed with the others was, that Cook had contracted to sell it to Colt, and he was afraid Cook might be made liable for a breach of that contract. But he wanted the purchase money to be settled to the separate use of his daughter, Mrs. Co.ok. it was Lemons, therefore^ and not Cook, who prevented the contract from being entirely executed at the date of the mortgage. Last of all, he acted openly in the business, when Cook’s intellects, had become loo weak to prevent him to act even ostensibly for himself. These, no doubt, are considerations for a jury; but at present I assume as a fact, which may be satisfactorily proved, that Lemons was the actual vendor of this particular tract; and, if this be cstablis'hed, it will be immaterial that the price of it was payable to Cook. On the other hand, it is as little to be doubted that Thomas Grant, the father of the defendant, was the actual purchaser. We have then a transaction between two fathers, each treating for his child; and, in equity, these al.so are parties: so that it.remains to inquire how far the acts of Lemons, as a vendor, will affect the plaintiff^ title to a specific performance.

It is admitted that if Lemons and Cook acted throughout by direction, or with the knowledge and assent of . the defendant, the fact would furnish a triumphant answer to every objection to the action but one; and of that I shall speak in the conclusion. But the affirmative of the proposition depends almost exclusively on the testimony of Lemons himself, whose connexion with the cause is so intimate, whose bearing in the transaction is so equivocal, whose story implicates him in a conspiracy to defraud, and who is contradicted in material points by so many witnesses, that his testimony ought to be left to the jury, with a direction to find for the defendant, if he were thought unworthy of credit.

But if Cook concealed the ownership of Lemons, and the delusion were kept up till the mortgage was executed, the plaintiff must fail. The suppression of that fact would be a positive fraud, which, according to Duncan v. M‘Cullough, (4 Serg. & Rawle, 438,) would so infect the contract as to render it incapable of subsequent confirmation without a new consideration; and fraud in the concoction of a bargain is a decisive answer to a bill for specific performance. Where the contrary is not stipulated, a purchaser is entitled to the conveyance and the covenants of the vendor himself. Here the conveyance of the other tracts by Cook,< contains a covenant of general warranty; and, if the parties intended that he should convey this tract also, it would be fair to infer that the deed was to contain the same covenant. The deed tendered by Lemons at the trial contains no covenant at all; but that is comparatively of little importance, as although the personal responsibility of Cook may have been an object of less value than that of Lemons, yet, if the defendant bargained for it, he is not bound to accept of any thing else as an equivalent. So that Lemons’s conveyance with or without warranty, would not be an execution of the contract on the part of. the vendor.

Again. If Lemons declared at different times, and on different' occasions, that he had bought and paid for the M'Cully tract, and. would keep it, that would furnish a substantial ground of objection to the action. A bill for a specific performance is an application to the discretion of the chancellor, who will not interfere where the party who seeks relief, has trifled or shown a backwardness in performing his part of the agreement, especially, if in the meantime a change has taken place in the situation of the parties, or an alteration in the value of the property. There must be no temporizing, but the plaintiff must show that he yvas always “ready, desirous, prompt, and eager.” If, since the time when the conveyance was to have been made, he has done any act inconsistent with the equitable ownership of the vendee, such as incumbering, he will be concluded; as in Huber v. Burke, (11 Serg. & Rawle, 238.) Laches per se may be an insurmountable obstacle; and the delay of even a few months has been a bar where there was an alteration of the value. (1 Mad. Ch. 417.) If then the jury shall believe that Lemons withheld the title because Cook was a spendthrift, and would not be prevailed on to settle the purchase money to the separate use of his wife, or even if without this or any other particular motive, he declared a determination not to execute the contract, he comes too late, after Cook's death has removed the cause of his repugnance, to put Cook's wife in a situation to call for the purchase money, and compel the defendant to take the property after it has greatly depreciated.

On the other hand, there is a circumstance which is a waiver of all delay previous to the time when it occurred. I allude to the compensation awarded to the defendant in 1817, for having been kept out of possession of this tract after the possession of the others had been delivered. The acceptance of this compensation was a recognition of the contract as existing for the purpose of specific execution, but subsequent trifling or backwardness might still be set up as a defence. What passed at the settlement before Mr. Priestly and John Cook, has not been disclosed, and we are unable to judge of its effect on the contract.

But there is a circumstance yet to be noticed, the effect of which I take to be decisive against the plaintiff, be the knowledge and acquiescence of the defendant what they may. An action to recover dower in this tract was brought against Grant, by the mother of Cook; and, being submitted to arbitrators, came to a hearing in July, 1822. Lemons, who appeared before the arbitrators, asa witness for Grant, distinctly swears, that he and Grant entered into a plot to defeat Mrs. Cook, by denying the right of her son, who was then dead, to sell; Lemons declaring his own intention never to convey. Other witnesses testify, that having appeared as a witness to disprove the estate of Grant, he produced his deed, and declared under the sauction of an oath, that he had bought the land, and was determined to keep it. Here, again, we find him acting a part in the business, for, his own benefit; for Grant would undoubtedly have been entitled to an allowance out of the purchase money, for whatever should have been recovered in the action of dower. But the circumstance, most material to the inquiry, is, that we find him declaring on oath, (hat he considered the contract at an end. The consequence is, that Grant and Lemons, having conspired to cheat an innocent person, by repudiating the contract, shall never after set it up against each other. The principle that a sham agreement, or fraudulent representation, though absolutely void as to third persons, is nevertheless binding on the parties, is as old as the law itself. A fine illustration of it, is found in Montefiori v. Montefiori, (2 Bl. Rep. 363;) a case which bears a striking resemblance to the one before us. In an action on a promissory note, the defendant was not permitted to show that it had been given to serve the plaintiff’s purposes, in a treaty of marriage, by giving him a false credit as a man of fortune, the balance of accounts for which the note purported to be drawn, having no existence in fact; and this because, wherever third persons collusively represent any thing in a light different from the truth, they shall be held to make it good between themselves; or, to use the emphatic language of Lord Mansfield, “ it shall be, as represented to be.” The same thing in effect, was done in Small v. Brackley, (2 Vern. 602.) And in Bell v. Longbridge, tried before Chief Justice Tilghman, at a Circuit Court for Cumberland county, held in June 1807, at Carlisle, a judgment creditor who had delivered to his debtor a written acknowledgment of satisfaction, while the land of the latter was in execution, .and before a jury of inquiry for condemnation, was not permitted to allege that his judgment was unsatisfied. The cause was argued by able counsel, who thought proper to acquiesce in the decision. If, then, Lemons disaffirmed the contract, to enable Grant the more successfully to make a dishonest defence in the action of dower, he is ipso facto estopped from affirming the contrary. It seems to me this point removes all difficulty, by superseding every other inquiry; for if the jury shall believe that Lemons was the real party, and that he acted the part which is proved upon him by his own confession, and the testimony of witnesses, it would reflect but little credit on the administration of justice, to permit him to recover.

Duncan, J., delivered an opinion contra.

Rogers, J., and Huston, J., concurred with the Chief Justice.,

Tod, J., not having heard the argument, took no part.

Judgment reversed, and a venire facias de novo awarded.  