
    [Lancaster,
    June 3, 1826.]
    STUBBS, Administrator of PYLE, against KING.
    IN ERROR.
    In an action on a bond, given for the purchase money of a tract of land, the defendant may, under the plea of payment and notice of special matter, prove that while he was treating for the purchase, the plaintiff showed him, as the boundaries, lines which were afterwards found not to be the boundaries of the land conveyed, and that the lines designated in the conveyance excluded the land which was shown to him as part of the tract.
    Writ of error to Lancaster county.
    In the court below this was an action of debt on a bond, conditioned for the payment of one hundred pounds on the 3d of May, 1812, given by Samuel King-, the defendant in error.and defendant below, to Amos Pyle, the intestate of the plaintiff in*error.
    The plaintiff below filed a statement, under the act of the 21st of March, 1806, and the defendant, having pleaded payment with leave to-give the special matter in evidence, gave notice that on the trial he should give in evidence, “ that the bond on which the suit was brought, was given for the purchase money of a tract of land, sold by.Amos Pyle, the plaintiff’s intestate, in his lifetime, to the-defendant, Samvel King,&nd that in the sale thereof the said Amos Pyle practised fraud, imposition, and misrepresentation on the defendant, in showing the lines or boundaries of the said tract of land, and showed him, at the time he went to view the premises with an intention to purchase the same, different lines from those for which his deeds called, whereby he led the defendant to believe, that he was to convey to him certain timher land, which was in-eluded within the lines so shown, and which was the best land on-the premises, but which the said Amos Pyle did not afterwards convey, and that the tract of land so sold did not contain the quantity which the said Amos Pyle represented it to the defendant to contain.”
    The defendant, after having given in evidence a deed dated the 13th of April, 1807, from Amos Pyle to Samuel King, offered in evidence a deed, bearing date the ,16th of April, 1796, from the executors of William Gilchrist, deceased, to the said Amos Pyle. The counsel for the plaintiff objected to the testimony, but the court admitted it, and an exception was taken to their opinion.
    The defendant then offered to prove, by John Kurtz, “ that at the time Samuel King was about purchasing the tract of land, he went with him to Amos Pyle’s; that after talking about the purchase, Samuel King requested Pyle to show him the lines of the tract; that King, Pyle„ and the witness went out on the farm, and Pyle took them to the black oak corner between him and Rey-nold’s, which was regularly marked on four sides, and told King that was his corner, and if he sold to him he sold to that; that Pyle took them along the line running from thence to the white oak, and showed them several marked trees, upon the line, which he said were the line trees of his place; that the land along the line was very good timber land, the best upon.the place; that the whole of the timber land upon the place was about fifteen or twenty acres, and that this, shown as belonging,to the place, was the best of it, one acre' of it being worth three acres of the cleared land, taken in connexion with the farm; and that the.time at which Pyle showed the line to King was at or about the time the article of agreement was executed, to wit, the 3d of January, 1807.”' This evidence being objected to by the plaintiff’s counsel and admitted by the court, a second bill of exceptions was tendered and sealed.
    
      Montgomery and Jenkins, for the plaintiff in error,
    referred to 1 Binn. 616. Lessee of Dinkle v. Marshall, 3 Binn. 587. Snyder v. Snyder, 6 Binn 4S3. Christ v. Diffenbach, 1 Serg. & Rawle, 464 Cozens v. Stevenson, 5 Serg. & Rawle, 421. 5 Johns. Ch Rep. 29.
    
      Slayrhuker and Hopkins, for the defendant in error, cited,
    
      Pyle v. King, 8 Serg. & Rawle, 165 1 Serg. & Rawle, 441. 1 Madd. Ch. 262. Long v. Fletcher, 2 'Eq. Ab. 5. i Fonb. 122, 124,-(note z.) 6 Binn. 482.
   The opinion of the court was delivered by

GibsoN, J.

The consideration of the.bond on which this suit ÍS'brought, is the price of a tract of land. At the trial, the defendant was permitted to prove that while he was treating for the purchase, the plaintiff showed him, as the boundary, lines which are since found not to be so in fact, and that the lines designated in the conveyance, exclude land which was shown to him as a part of the tract. In England such á plea would not be tolerated in a court of law, notwithstanding that in Mr. Chitty's treatise on pleading, (vol. 2, page 495,) there is a precedent for it; but the better opinion is, that only that sort of fraud which is committed in the execution of the instrument, can be pleaded at law. In Pennsylvania, where equity is a part of the law, this distinction is without consequences, fraud being a defence in all casejs. But the objection is rested on ground which is independent of the forum'. In the conveyance to the defendant, the land is described by metes and bounds; and'it is argued, that the evidence contradicted the deed, by showing that the land was sold by other boundaries: and it is also contended, that the declarations of the grantor, having, been made before the execution of the deed, were inadmissible, all former stipulations being merged in the act, which is the consummation of the contract. • The objection on the score of the statute of frauds merits but a passing remark. The evidence respected not the construction of the conveyance, nor any question as to what passed by its terms, but a matter entirely extrinsic, and it therefore was not in contradiction of the deed. The object was not to make out or disclaim title to land by parol, but to show that the defendant had been overreached in the bargain, such as it ap-' peáred on the face of the conveyance: and the evidence was therefore consistent with the conveyance. These declarations by the grantor at any time previous to the execution of the conveyance, are competent evidence to affect not the vendee, but the vendor himself, by showing fraud ip the very concoction of the bargain. It is in general true, that the execution of a conveyance is a fulfilment of all previous bona fide stipulations, because such stipulations ar.e liable to be varied while the negotiation is pending, and the material thing being the definitive conclusion at which the minds of both parties have arrived, the writing by which the evidence of it is to be perpetuated, is supposed to contain the whole contract. But where a continued misapprehension of material facts has been induced on the part of the one, by the misrepresentations of the other, it is obvious that the execution of the writing ought not to extinguish the right of the injured party to show the fraud by which his assent to the contract was obtained. This is a particular head of equitable relief; in affording which, it. is said a deed cannot be set aside in part for fraud; but that it must be set aside in tolo, even though innocent persons are interested under it. But this, I apprehend, must be understood in relation to fraud which goes to the whole contract, and where the injured party is entitled to rescind. In cases like the present, it seems to be our practice to consider the defence as resting on the ground rather of want of consideration as a consequence of the fraud; and the relief is then only commensurate with the actual want of consideration. We are of opinion the evidence contained in these two bills of exceptions, which in principle are essentially the same, was properly admitted.

Judgment affirmed.  