
    Lessee of Packer against Gonsalus.
    In Error.
    THIS was a writ of error to the Common Pleas of Centre county, upon which five several bills of exception were returned. It was an ejectment for a tract of land on the north side of Bald Eagle creek, in which the case was thus:
    The lessor of the plaintiff, James Packer, claimed, under an. application of the 3d of April, 1769, No. 933, in the name of Joseph Wilson, for 300 acres, the property of Samuel Wallis, deceased; and a survey on the 9th of November, 1769, returned into the office on the 20th January, 1770.
    The defendant claimed under an application of tbe 3d of April, 1769, No. 158, in the name and the property of Benjamin Brown, for 300 acres “ on the north side of the Bald “ Eagle creek, bounded by the creek on the south, the nar- “ rows on the north, and the improvement of James Gould on the west, about five miles below the Bald Eagle, old town.”
    On the 26th of April, 1784, Brown conveyed his right to the defendant. In the year 1769, when Charles Lukens, deputy surveyor, went to Bald Eagle creek for the purpose of making surveys on the applications in that quarter, Benjamin Brown, Samuel Wallis, and Others, attended him. No survey was ever returned for Brown, but the defendant alleged that a survey was made on his application, which was after-wards fraudulently returned on Joseph Wilson’s application on the 20th January, 1770. George Frey had an application calling for land on Bald Eagle creek, and Charles Lukens first of all gave him the draft of the land now in dispute : but afterwards Frey had a tract higher up the creek returned for him, Lukens declaring that he had given him the first draft by mistake. On the 15th March, 1771, Brown entered a ca■vcat in the land office against the acceptance of the survey returned on Frey’s application, alleging that the said survey was not laid on the land intended to be taken up by Frey, but on the land intended to be taken up by himself. On the 6th May, 1788, Richard Gone alus, the defendant, entered a caveat against James Packer, who had purchased from Samuel Wallis the tract in dispute. On the 3d November, 1788, the caveat entered against George Frey was withdrawn. On the 6th November, 1788, the Board of Property made an order that the deputy surveyor should make a survey of the pretensions of the defendant in right of Benjamin Brown and of James Packer, in right of Joseph Wilson, and make return of the same on the 4th May following. No return was made, in pursuance of this order, but on the day appointed, the 4th May, the Board dismissed the caveat of the defendant, and decided that a patent should be issued to James Packer. The defendant contended on the trial that the application of Brown described the land in Controversy with reasonable certainty, and that a survey was actually made for him, and improperly returned for another. On the other hand the plaintiff contended that the application of Brown called for the land which was returned for George Frey, and that no survey of the land in question was ever made for any other person than Joseph Wilson.
    
    
      Where the original draft of a survey found among tlie papers of a deceased surveyor had no name inserted in it, a .deposition by a person who assisted in making the survey, that he believed a a copy of the said draft was a copy of a draft made for the defendant and delivered to him at the timeofsurvey, cannot be given in evidence by the defendant, without producing the draft given to him, or accounting for its non-production.
    Such deposition is not admissible to prove that the surveyor told the deponent at the time the survey was made, that the defendant lived on the land.
    Depositions before the Board of Property are not evidence in a trial at law, even between the same parties. But an cxpavte deposition used before then* by the adverse party is admissible, if produced to take from the weight of their decision, by showing the sort Of evidence on which they decided.
    Where a caveat had been entered, and continued, against a third person, having no title, but to whom a draft of survey had first been delivered, evidence may be given of his declarations, that he claimed the land, in order to account for the caveat.
    The plaintiff read in evidence a title deed reciting that possession of the land in dispute had been delivered to A. according to contract. Held, that to rebut the presumption of out-standing title he might shew that A. admitted he had sold to another who had sold to the plaintiff.
    After a person has parted with his interest, his declarations are not evidence' to impeach the title derived from him: though adduced to corroborate wluit lie had said before, or what was sworn by another witness.
    
      On the trial, the defendant examined as a witness James Harris, deputy surveyor, who produced a draft of a tract on Bald Eagle, in the hand writing, part of Charles Lnkens, and part of Jesse Lnkens, in which no name was inserted. He testified, that he received it along with other official papers from D. Smith, the executor of Joseph J. Wallis his predecessor in office; and that he never saw any draft of any part of the lands in question with Benjamin Brown’s name inserted, in any office; or that could be called an official paper. The defendant then offered in evidence the deposition of Daniel Turner, with a draft annexed, which was admitted to have been made out by James Harris, from a paper in his office.' The deposition stated, that some time in the year 1792, Joseph Wallis deputy surveyor of Mifflin and Northumberland counties, requested phe deponent, who was then his assistant for part of Mifflin county, to examine the lines of interference, if any there was, on a tract or two of his brother’s, in the name of Wilson, on Bald Eagle, and a certain claim of Benjamin Brown: Joseph Wallis also informed deponent, that Richard Gonsalus had obtained orders from the Board of Property, for.him to examine the lines of intersection, if any: that Brown's order never was laid there, nor the lines ever run: if run, it v/ould stand hard with his\ brother Samuel's order, as their order was much the earliest. He also told the deponent not to tell Gonsalus he had got this information, nor inform him, nor run the lines in his presence, unless >he called upon him to do it: and gave him the copy or notes of Brown's draft. The deponent was after-wards called on by Gonsalus to run these lines, and he found them on the ground according to Brown's draft. He blocked the trees of the lines, and found them answer exactly with the date of Brown's survey. He then marked exactly the interferences on a draft for Gonsalus, of the lands in question, and Gould's improvement. And at the , time that •Joseph Wallis gave him the draft, he told deponent, that Gonsalus was living on the land : and that the draft annexed to the deposition, he verily believed, to the best of his knowledge, was a copy of Brown's draft. The plaintiff objected to so much of this deposition as speaks of notes, or a draft of Benjamin Brown, given by Joseph J. Wallis, unless the notes or draft are produced or proved to be lost, and to the witness’s stating generally, that he ran and found the lines of Brown on the ground, and that they agreed exactly with Brown's survey, unless he had stated what courses he ran, and what the date of the survey was, and generally to the last six lines of the deposition, (from the words “ and he “ found them on the ground,” inclusive,) and draft annexed. The court, however, over-ruled the objection, and admitted the whole deposition. The plaintiff tendered a bill of exceptions.
    The defendant also offered in evidence a draft of sundry tracts on Bald Eagle, and a deposition of Samuel Wallis written under it, dated the 11th April, 1789, certified under the hand and official seal of David Kennedy, secretary of the land office, on the 17th January, 1794. It was made ex parte, and sworn before the deponent’s brother, the before mentioned Joseph Wyllis, deputy surveyor, and justice of the peace. The defendant’s caveat was dismissed on the' ground of this deposition, and it was offered, not to support the defendant’s title, but to show on what ground the decision of the Board of Property took place. To this deposi-' tion the plaintiff objected: but it was admitted by the court, and an exception taken.
    . The defendant also offered to prove by '.witnesses, that George Frey (who was admitted to be.dead) not,only before, but subsequent to his release before the Board of Property,, claimed this land up to and after the year 1790, and declared, that if he did not get the land on which Gonsalus lived, he had no land on Bald Eagle creek. This evidence was offered for the purpose of showing, why the caveat was entered against George Frey, and the proceedings thereon. It was objected to by the plaintiff: but was admitted by the court, and an exception taken.
    The plaintiff having previously read in evidence a deed, dated December 29th, 1779, from. Samuel Wallis to James Packer, in which there was a recital, that Wallis had delivered possession to Isaac and Abraham Vancamp, according to a verbal contract between them; and, that the Vancamps, after making improvements, had sold to Alexander■ IJLartin, and .that Martin had sold to James Packer: offered Jesse Packer as a witness to prove, that he knew Isaac and Abraham Van-camp, and heard them say$ about the year 1779, that they had sold their right to this land to 'Alexander Martin; and further, that he was present in the same year, when Alexan■der Martin sold his right to'the lands in question, to James ■Packer, the father of the lessor of the plaintiff. This testimony was objected to by the defendant, and over-ruled by the court, and an exception taken.
    ' The plaintiff also offered to prove by William Lamb, that ■Benjamin Brown, after he had sold his right to the tract in question to tlje defendant, and made his deed, told the witness, that he had not obtained a survey oh his order, No. ■158, by reason of his first claiming to have it surveyed oh the land on which Thomas Poultn.ey’s order was surveyed. The defendant objected to this testimony, and it was overruled by the court, and an exception taken.
    
      Huston and Watts for the plaintiff in error.
    . 1. The deposition of Daniel Turner ought not to have been received in evidence. The paper referred to by him, 'as giyen to him by Joseph Wallis, should have been produced, or a sufficient reason assigned, why it was not. He says, that he made a draft and «delivered it to Gone alus, containing the lines of the other draft, and noting interferences. Why was not this produced ? That part of the deposition which states, that Joseph Wallis told the witness, that Gonsalus lived on the land, is mere hearsay.* It was decided in Dawson v. Laughlin, 2 Sm. Laws, 256, that the time of survey cannot be proved by parol.
    2. The deposition of Samuel Wallis, taken ex parte, and read before the Board of Property, was improperly admitted; neither the deposition itself, nor a certified copy, are evidence. It is true, the act of 9th April, 1781, provides, that u copies of records, entries, and papers of the said office, duly “ attested by the said officers or their lawful deputies, under “ their hand and seal of office, shall be as good evidence as “ the original by law might or could be.” But this is not such a paper as ought to have been deposited in the office: nor are such papers customarily preserved there. Besides, the hand writing of Samuel Wallis should have been proved.
    3. The declarations of George Frey were not evidence. The plaintiff does not claim under Frey. The proceedings before the Board of Property, on'Erown’s caveat against Frey, were introduced, not by the plaintiff, but by the defendant. Nor are his declarations after his caveat was with- ' drawn, any evidence of his reasons for entering it.
    4. The declarations of Vancamp, that he had sold to Martin, were improperly rejected. . A parol sale may be proved by the declaration of the person, who made the sale, after it was made. We had shown, that Wallis had once given possession to Vancamp, under a Contract with him. This was evidence against us. We had therefore a right to take off the force of this confession, by showing that we had purchased the title of the Vancamps.
    
    5. The fifth bill of exceptions is to the rejection of the evidence of William Lamb, of declarations by Brown, after he had parted with his title. These declarations being consonant to what "he. had said before He had parted with his title, are evidence by way of corroboration of what he had said before, and also, in corroboration of the testimony of D. Evans, which had been contradicted. Stewart v. Richeson.
      
    
    
      
      Burnside and Duncan for the defendant in error.
    1. The paper referred toby Turner, who uses the words copy and draft as synonimous, was the official draft. It was placed in his hands by Wallis, in order to enable him to make the survey, and it iá presumed was returned to Wallis. It is not to be supposed, that Turner could obtain an original office survey to annex to his deposition. Such papers it was the duty of the deputy surveyor to keep in his office. The next best evidence was a copy. This was procured and annexed to the deposition. He calls it Brown’s draft, because it was made for Brown. Thompson v. Musser,
      
       5 Cranch, 187, 1 Dall. 85. 3 Binn. 539.
    
    2. The deposition of Samuel Wallis is clearly within the words and meanihg of the act of assembly, 9th April, 1781. It is objected, that it is ex parte. But that is the reason why we offered it in evidence. It was on the ground of this ex parte deposition taken before the deponent’s brother, Joseph Wallis, the deputy surveyor, that the caveat of Gonsalus was dismissed on the 4th May, 1789. It was to show the sort of evidence on which that took place, and that Samuel Wallis had obtained a patent by artifice. Having been used by Packer in support of his title, in a course of legal proceeding it may be used against those claiming under him.
    3. The declarations of Frey were offered simply for the purpose of accounting for our continuing so long a caveat against him.
    4. As to the declarations of Isaac and William Vane amp, it is sufficient that there was no evidence, that they occupied any part of the land, or that they had any right or interest in it. The recital in the deed from Wallis, is not evidence against the defendant. 3 Binn. 175. 314.
    5. Lamb’s evidence was properly rejected. Brown's declarations, after he had parted with all his right, could have no effect. It is laid down by Spencer J. in Phœnix v. Assignee of Ingraham,
      
       that the declarations of a party to' a sale cannot, ex post facto, affect the vested rights of another. Nor can- illegal evidence be admitted by Way of corroboration.
    
      
      
         4 Binn. 198.
    
    
      
      
         1 Dall. 264.
      
    
    
      
      
         5 Johns. 426.
      
    
   Tilghman C. J.

(After stating the case proceeded as follows:) — If the application of Brown described the land in controversy with reasonable certainty, and a survey was actually made for him, and improperly, returned for another, the cause was with the defendant, and on this ground he rested his defence. On the other hand, the plaintiff contended, that the application of Brown called for the land which was returned for George Frey, and that no survey of the land in question, was ever made for any other person than Joseph Wilson. Five bills of exceptions were taken by the plaintiff to evidence offered by the defendant.

1. The first exception was to the deposition of Daniel Turner, who swore that he was an assistant of Joseph Wallis, deputy surveyor of Mifflin county, and was directed by the said Joseph Wallis to make a survey for Gonsalus, according to the directions of the Board of Property, in which the lines of the said Gonsalus’ claim, under Benjamin Brown’s application* should be run, and also the lines of the survey returned for Joseph Wilson, and the whole laid down on a draft, showing the interferences of the two tracts, and that for this purpose-, Joseph Wallis gave to the deponent the copy or notes of Brown’s draft; that Gonsalus afterwards called on the deponent, who, at his request, ran the lines, and found them to agree with Brown’s draft; and that he blocked trees upon- the lines, and found them to answer exactly to the date of Brown’s survey; the deponent then marked the interferences on a draft for Gonsalus; and the deponent further said, that when Wallis gave him the draft, he told him that Gonsalus was living on the land. Annexed to this deposition was a draft, proved by James Harris (deputy surveyor) to be a copy of an official paper in his possession, but it does not appear by this paper for whom the draft was made, and Harris swore, that he never saw any official survey of the land in dispute, with Brozvn’s name on it. Turner swore that he verily.believed, the draft annexed to his deposition was a copy of Brown’s draft, delivered to him by Joseph Wallis, but he did not say what had become of that paper, nor was ■any account given either of that, or of the draft made by the deponent for Gonsalus. The matter contained in this deposition was very important; if believed by the jury, it went far towards the establishment of the defendant’s cause-. One part of it was clearlynot evidence — that part which mentions what Joseph Wallis told the deponent, of Gonsalus living on the .land; it was hearsay evidence, and of some moment, as Qonsalus relied on the equity of his long possession. But this deposition is liable to a more important objection. It was incumbent on the defendant to show, that the draft annexed to the deposition, was the same from which Turner ran the lines; but this was no otherwise done than by Turner’s belief, and that after a period of many years. Was there not better evidence in the defendant’s possession ? There was, for he had received from Turner a draft, showing the very work which was done; this ought to have been produced, or proof made of its. loss or destruction. If there had remained of record, an official draft of a survey, appearing on its face to have been returned for Brown, and Turner had sworn that he received from Lukens the original, or a copy of that draft, and a certified copy had been annexed to the deposition, I should have thought it sufficient, because then, the annexed draft would have plainly appeared to be a copy of the same original, which had been delivered by Lukens to Turner. But the official draft having no name on it, left it in doubt for whom the survey was made, and that is the very gist of the dispute. In so doubtful a circumstance, it was highly reasonable, that before the paper should go to the jury, identified only by the belief of the witness, the defendant should at least show, that he had no better evidence in his power; and in this he failed. He had once in his power the draft made by Turner, which would have put the matter out of doubt: this draft, therefore, should have been produced, or the loss of it accounted for. I think too, that as the deposition speaks of Brown?s draft being delivered by Lukens to Turner, and the draft produced does not appear on its face to have been made for Brown, nor has it any date, it ought to have been shown that the identical draft delivered to Turner, was not still in his possession, or in the possession or power of the defendant. The requiring of this, was no hardship, as Turner could say what he had done with it. If satisfaction had been given on these points, the deposition, with the draft annexed, (except the hearsay of 'Joseph Wallis as to the defendant’s possession) would have been good evidence, being the best of which the nature of the case admitted.

2. The next exception was to the admission of the deposition of Samuel Wallis, certified under the hand and official seal of the secretary of the land office. It is objected, 1st, that this was not such a paper as was intended by the act of 9^ April, 1781, declaring what certified copies shall be evidence. 2dly, That supposing the copy to be well certified, it was not evidence from its nature. The act of assembly speaks of u records, entries, and papers.’’’’ Now this certainly comprehends a deposition used iif a cause depending before the Board of Property. That Board is not a court of record strictly speaking, yet when the act mentions records, it is no great stretch to extend the meaning to all proceedings in causes depending before the Board. The secretary, receiver general, and surveyor general, have distinct offices, which constitute a whole, called the land office. The expressions of the law are, that “ copies of records, entries, and pa~ pers of the said office, duly attested by the said officers or “ their lawful deputies, under their hand and seal of office, “ shall be as good evidence as the original, by law, might or “ could be.” The three officers sit together in the Board of Property, and the secretary has the custody of the papers belonging, to the Board. ^ If depositions are not records, they are at least papers of a public nature, used before a court legally constituted for the decision of all caveats. As such, they are deposited in the office of the secretary, and ought not to be removed. They are therefore within the words, as well as the meaning of the law. Next , as to the matter of this deposition of Samuel Wallis. It was made ex parte and sworn before his brother, the before mentioned Joseph Wal~ lis, députy surveyor and justice of the peace. The proceedings before the Board of Property, not having been generally conducted with great regularity, it has been decided, that depositions used before them are not evidence, in trials at law, even between the same parties. If therefore the defendant had offered the deposition, as containing matter in support of his title, it would not have been evidence. But the case was very different. The matter of this deposition was directly against the defendant’s title, and was offered for' the pui'pose ©f taking from the weight of the decision of the Board of Property, by showing, that it was founded on an ex parte deposition of a person, who, although he had no direct interest, (having previously conveyed, without warranty all his interest in this land to James Packer) yet might be supposed to be inclined in favour of the person to whom he had sold. For this purpose^ and for this .purpose only, it was good evidence. The decision of the Board of Property’ being evidence against the defendant, it was lawful for him to show, on what ground that decision was founded. This deposition goes directly to that point, because the dismissal of the caveat was founded on it, as is expressed in the body of the decision. The weight of this decision might be somewhat lessened, by the circumstance of the deposition being ex parte, and the jury might think it worthy of consideration that it was taken before Joseph Wallis, who, as it appears by the evidence of Daniel Turner, was desirous that the defendant’s claim, under Brown’s application, should be defeated. I am therefore of opinion, that it was properly admitted.

3. The third exception is to the admission of evidence offered by the defendant, to prove the declarations of George Frey, that he claimed the land in controversy. It appears to me, that this evidence was strictly proper. Brown had entered a caveat against Frey’s survey. This survey was returned-to the land office on a tract of land different from that in disputé. Unless that circumstance could be explained, there was an end of the defendant’s cause; for Brown by entering a caveat, for a different tract, showed, that in his own opinion, his application was intended for a different tract. Now it had been proved, that Charles Lukens first delivered the draft for the land in dispute to Frey, which, added to Frey’s persisting in his claim to this land, might possibly have deceived Brown as to the survey actually returned. Knowing that the draft was delivered to Frey, and that Frey claimed the land in dispute, he might have been led to suppose, without further inquiry, that Frey’s survey was returned for this land. The jury were to judge of the weight of the evidence, but it was a circumstance proper to be laid before them.

4. The plaintiff produced Jesse Packer, a witness, by whom he offered to prove, that Isaac and Abraham Vancamp had sold their right to this land to Alexander Martin, and that Martin had sold to James Packer, father of the lessor of the plaintiff; but the evidence was rejected by the court. It has been contended, that this evidence was improper, because it had not been shown that the Vancamps had any interest. If it were so, the objection would be good. It must be proved that a man had an interest, before it is permitted to be proved that he made a conveyance; because otherwise the conveyance is not relevant. But how is the fact? The deed from Samuel Wallis to Packer had been read in evidence by the plaintiff, in which deed there is a recital, that Wallis had delivered possession to Vancamp according to a contract between them. This recital was evidence against Wallis, and against the plaintiff who claimed under him. The defendant might have made use of it to show an outstanding title in Vancamp, in bar of the plaintiff’s recovery; it was competent therefore to the plaintiff to rebut this argument, by showing that his father had purchased the right of the Vanca?nps from Martin, who had purchased from them. These conveyances, being executed by delivery of possession and payment of purchase money, would have been good without writing. I am therefore of opinion, that the evideqpe should have been received.

5. The last exception is to the rejection of the testimony of William Lamb, by whom the plaintiff offered to prove, that Benjamin Brown, after he had sold and conveyed to Gonsalus, acknowledged to Lamb, that he had not obtained a survey &n his application, because he had first claimed to have a survey on the land on which Thomas Poultney’s order was surveyed. Most clearly such acknowledgment was not evidence. If made while Brown had an interest, it would have been evidence against himself and all claiming under him, a# the confessions of the party concerned in the suit, or (which is the same) of the person under whom he claims. But after Brown had sold to the defendant, all privity between them was destroyed, and Brown stood in the same situation as any other stranger; consequently a court of justice would hear nothing from him without oath. It has been urged that these declarations might be received by way of confirming and corroborating what he had said before, and of corroborating the testimony of one of the plaintiff’s witnesses, who had been contradicted. But I feel no strength in this distinction. Where the credit of a witness is impeached by evidence, that he said something inconsistent with what he has sworn, at another time, this may be rebutted, by proof of other declanations by him, in conformity to what he has sworn; because, both being without oath, one is as good as the other, and the jury will judge of his credit on the whole. But with respect to Brown, his acknowledgment, without oath, could be ad-matted on no other principle, than as the confessions of a party interested, under whom the defendant claimed, and therefore the principle was no longer applicable, at a time when the defendant no longer claimed under him.

On the whole of this case, my opinion is, that the judgment should be reversed, and a venire facias de novo awarded.

Yeates J.

The correctness of the court’s decisions during the trial, upon questions of evidence, depends, in a considerable degree, on the state of facts previously shown. There can be no doubt, that what Joseph Wallis told Daniel Turner of Richard Gonsalus's living on the land, was not legal evidence of that fact. It was competent to Turner to prove the courses he ran on the disputed premises in 1792; the marked trees he found there, and the ages of the blocks. He might also swear, that he pursued the lines of any particular draft, and found them distinctly marked, but he could not swear, that they exactly answered the date of Brown's -survey, when the original paper in the deputy surveyor’s office, shows néither date nor name. The identity of the draft in his hands, might have been ascertained by superior evidence to his belief. He swore, that he marked exactly the interferences in a draft for Gonsalus of the lands in question. Where is this draft? 'Not in the office of the deputy surveyor, as Mr. Harris swears. Gonsalus should have been examined on this point. If a draft of the interferences m.ade by Turner at the time, could be shown, it would obviate the objection, as to the identity of the paper. If Gonsalus could •swear, either that he never received the draft, or that it has been destroyed or lost, it would show, that due pains had been taken to supply ambiguities in the answers of Turner, who ought in the first instance, to have declared to whom he delivered the copy or notes of Brown's draft, as they are termed by him. As the case stands before us, I think the objections to part of the deposition of Turner shpuld have prevailed.

2. The connected surveys on Bald Eagle creek, together with the affirmation of Samuel Wallis underwritten, certified by a copy from the surveyor general’s office, under his seal of office, was proper evidence to account for the manner in which the defendant’s caveat was dismissed, and the patent granted to the plaintiff. I consider it to be evidence only in this point of view. I do not consider Wallis as interested, when he made his affirmation'on the 11th April, 1789, ten years before he had conveyed to the plaintiff’s father, without any covenant as to the goodness of his title. His covenant of further assurance in his deed, did not oblige him to insert any covenant of general warranty in his new, conveyancé. He therefore could not be deemed a party, so as to entitle his affirmation to be read as the declarations of an interested man. It does not appear, that the defendant was present when his caveat was dismissed by the Board of Property, but they decided on the ex parte affidavit of -Samuel Wallis. The 3d section of the act of 9th April, 1781, directs, that “ the copies of records, entries, and papers of the land “ office duly attested, shall be as good evidence, as the ori- “ ginals by law might or could be.” If the original affidavit of Wallis could legally be received in this cause, so also could this copy under the positive terms of this section. The defendant might properly show, how he was prevented from proceeding on his caveat. I desire to be explicitly understood, as not giving an opinion, that the copies of depositions received by the Board of Property upon hearings on caveats, can be admitted in evidence. Such depositions have often been over-ruled, even where there has been a cross-examination. The law of 1781, effects no alteration in the substance, but only as to the form in which the evidence shall be received.

3. The declarations of George Frey, as to his claims under his application, were properly admitted to go to the jury, to account for the defendant’s entering a caveat against him. It lay with them to decide, whether a rational ground had •been assigned for the defendant’s predecessor, Brown’s proceeding to caveat a return on Frey’s application, on the 15th March, 1771, and the defendant’s caveating the plaintiff’s return, on the 6th May, 1788, after an interval of 17 years had elapsed. And it was highly material to ascertain, whether the first caveat was not founded on a mistake, superinduced by the improper conduct of Charles Lukens, who surveyed the lands.

4. I think, the declarations of Isaac and Abraham Fan-camp, ought also to have been allowed to go the jury, as offered on the jpart of the plaintiff to be proved by Jesse Packer, and likewise, that he should have been permitted to establish the sale, by parol from Alexander Martin to James Packer, the father of the lessor of the plaintiff. The verbal contract between Samuel Wallis and the Vancamps, the sale of the latter after making improvements on these lands, to Martin, and the sale by Martin to James Packer, are severally recited in the indenture of 29th December, 1779, -from Wallis to Packer. It is readily admitted, that these recitals were not legal evidence against .the defendant, according to the cases in 3 Binn. 175 and 314. But they were evidence against the vendor, and all persons claiming under Samuel Wallis. The words of the indenture bound both parties. Independently of the facts offered to be proved by Jesse Packer, the defendant might avail himself of a defect in the plaintiff’s chain of title, and the plaintiff was bound to repel the objection, which would occur on the face of the conveyance made to James Packer, senior. A parol sale, and possession delivered in pursuance of it, with money paid to the vendor, will vest an equitable interest, and under certain circumstances, specific execution of such a contract will be decreed in equity. No reason can be assigned, why the plaintiff should be precluded from showing the truth of the case, in order to supply a defect, which would otherwise, bar his pretensions to the lands. The claim of Vancamps and Martin had been shown previously to the offer of the testimony of Jesse Packer.

5. The last exception respects the declarations of Benjamin Brown, made to William Lamb, after he had sold his right to the tract of land in question to the defendant, and made his deed, that he had not obtained a survey on his application, by reason of his first claiming to have it surveyed on the land which had been surveyed, on the elder order of Thomas Poultney. The effect of this evidence would be, that Brown, after having received his consideration of 50/., should retain that money, and yet frustrate by his testimony all the benefits to be derived under the conveyance he had made. This would be directly repugnant to every principle of common honesty, sound policy, and legal decision. No man shall be permitted to invalidate his own deed, is a settled legal maxim, founded on the immutable principles of justice.

The first and fourth bills of exceptions, I conceive have been weli supported, and the decisions thereon erroneous, as to the legality of the evidence offered; but as to the other1 bills, they are not supported.

I am therefore of opinion, that the judgment below be reversed, and a venire facias de novo be awarded.

Brackenridge J. delivered an opinion, in which he agreed with the rest of the court, but as it has beén mislaid, the reporter is unable to publish it.

Judgment reversed, and a venire facias de novo awarded.  