ment of these incumbrances, Share was imposed upon, and per- 1821. suaded to accept a deed, which he would not have taken; it Lancaster. would be such a fraud, as would entitle the grantee to rescind the bargain, and to consider it of no force or effect. But fraud is not to be presumed; it must be made out by positive and direct testimony, or by the proof of such facts and circumstances, as are absolutely irreconcileable with the principles of justice and morality. But it seems to me that the fact relied on as evidence of fraud, is absolutely inconsistent with the belief, that there was any studied concealment of the incumbrances-whether Henry Share was previously acquainted with their existence, does not appear, but it is shewn, that at the instance of the grantor, Doctor Watson did inform Mr. Share of them, and that it was the intention of Mr. Anderson to send off, and have them removed. Mr. Anderson then spoke out, and said he would send off the morrow or next day, and get releases, and that at any rate, Mr. Share should not be a loser for the want of them; with this promise, Mr. Share appeared satisfied. Share then had notice of these incumbrances immediately after the execution of the articles of agreement, and he had notice of them specifically from the records, which he procured for Mr. Gloninger, at the time the deeds were about to be executed. It appears that when Mr. Share found, that the releases were not obtained, he seemed to be a good deal dissatisfied; Mr. Anderson told him he need not be uneasy about it, that he would try and get the releases, and that Share should have no loss on that account. With all this knowledge then, Mr. Share accepted the deeds for the property in question. If Mr. Share meant to make any objections to the title, on account of these incumbrances, this was the time for making it. He was not obliged to take the deeds until the incumbrances were removed. But with a full knowledge of all the circumstances of the case, and all the difficulties which might attend it, he expressed himself satisfied, and accepted the deeds. It becomes now necessary to attend to the operation of the deeds. The points which most materially affect this case, are those which contain the clauses of warranty. In these, the grantor covenants that Henry Share may peaceably and quietly enjoy the premises, free, clear, and discharged, or well and sufficiently saved, and kept harmless SHARE and another V. ANDERSON'S executors. 1821. of and from all former and other grants, dower, estate, Lancaster charges, and incumbrances whatsoever, had, made, or done, by any person whatsoever. SHARE and another V. ANDERSON'S executors. There is also a covenant of warranty against the grantor, and his wife, and their heirs, and against the heirs, and representatives of his father James Anderson, and against all and every other person whatsoever, lawfully claiming or to claim the premises or any part thereof. It is the opinion of the Court, that the agreement of the 4th October, 1813, to give a good and sufficient title, was satisfied by the execution: and delivery of the deeds, and their acceptance by Mr. Share. It will be proper to enquire also, into the effect which these deeds may have upon the case, as it relates to the parol testimony adduced by the defendants, viz. The testimony of Dr. Watson and Henry Leibhart, offered and received before the proof of the execution of any other deed than the articles of agreement. The competency of the parol evidence could be maintained, after the production of the deeds, only on the ground of an allegation of fraud in the grantor, or on the principle, that the promise made by him was an independent engagement, and entirely distinct from that which was afterwards incorporated into the deeds. If you are of opinion that Anderson was guilty of fraud in the matter already mentioned, in concealing the incumbrances, and imposing upon the grantee, and persuading him to enter into contract, then the testimony was properly received, and you will give it that weight to which it is entitled. In any construction of this agreement, which is called an independent and collateral one, I do not perceive how it could be extended further than a promise by Anderson to indemnify against the claim of his step mother, and brothers, and sisters. "The grantee was to suffer no loss on that account," and in the utmost latitude, it could not be intended to make him liable to a greater extent than the amount of the incumbrances, which were then within the contemplation of the parties. But in whatever point of light this agreement may be considered, it had in view the same subject matter, the same incumbrances, and the same extent of indemnification, which were provided for in the deeds of the 12th of November, 1813. If you are of opinion, that there was no fraud in the transaction, there is an end made of all parol agreements, respecting the conveyance of this land, or any SHARE and another V. ANDERSON'S executors. thing relating to it, by the execution of the deeds. Dr. 1821. Watson's and Henry Leibkart's testimonies were admitted Lancaster. for the purpose of proving a fraud, if it could have been done. If it has not been proved, their testimony is to be altogether rejected. The rule is too reasonable and too well settled, to be now disturbed, that when an agreement is reduced to writing, all previous negotiations are resolved into the writing, as being the best evidence of the certainty of the agreement. The acceptance of the deed is an execution of the whole contract, and the rights and remedies of the parties, in relation to such contract, are to be determined by such deed, and the original agreement becomes null and void. It cannot be a safe, and salutary rule to allow a contract to rest partly in writing and partly in parol. Whenever it is reduced to writing, that is to be considered as the evidence of the agreement, and every thing resting in parol becomes thereby extinguished or discharged. It is, says the Supreme Court of New York, (1 Johns. Rep. 416,) a new doctrine, that there can be a warranty in writing, and a warranty by parol in the same contract. The matter then rests upon the clauses of warranty contained in the deeds; the incumbrances were within the notice of the parties at the time of its execution; have they provided against them by special covenant? what is the construction to be put on these covenants, and what is the extent and nature of them. James Anderson having the fee simple in the lands, subject to the lien of the claims of his mother, and brothers and sisters, covenants, and agrees that the grantee shall peaceably and quietly enjoy the premises, free, clear, and discharged, or well and sufficiently saved and kept harmless, of and from all former grants, charges, and incumbrances whatsoever, had, made or done by any persons whatsoever. It is the opinion of the Court, that this provision in the deed respecting incumbrances, amounts to no more than a covenant to indemnify the grantee against all then existing charges, liens, or incumbrances upon the lands, and to the extent of those liens, charges, or incumbrances, and no further. And that the grantor is not liable for any subsequent acts of the grantee, or for any losses which might accrue from any dispositions of the lands, grants, agreement or speculation, to which he might afterwards be a party. Under this view of the subject, it would be right to lay out of the case, 1821. Lancaster. SHARE and another V. ANDERSON'S executors. all the testimony which has been given, respecting the laying out of this land into lots, the agreements and settlements of the parties concerning it, the sales of those lots and any profit or loss accruing from the sales, or other dispositions of them. I say all the evidence respecting these matters, is to be rejected, and the case is to be considered as if no such evidence had been given, because in the correct decision of it, this evidence ought to have no weight. So, if there were no fraud or imposition in the case, we are to pay no attention to the real value of the lands, sold to the amount of the purchase money, or to the depression of the price, which afterwards took place, nor is it material to the grantor that he was made acquainted with the object for which the purchase was made, unless he was guilty of fraud, or studied concealment of some circumstance unknown to the purchaser, by which the object of the purchaser was defeated. With these matters we have no concern, we are only to determine upon the contract, solemnly entered into between the parties, and upon the meaning and extent of that contract. A Court of justice cannot, and ought not to make bargains for parties, or to determine in the case of a purchase, what one party ought to give, and the other to take. Considering then this case as divested of fraud, it becomes necessary to ascertain the amount of the incumbrances, with which this land was charged at the time of the suit brought, because the grantor can be liable, only for the amount of the incumbrances existing at the time, at which the suit upon the bond was commenced. If he had then paid off or obtained a discharge of all the incumbrances, he would be entitled to recover the whole amount due upon the bond, with the accruing interest; and the amount of incumbrances, then in existence, is all that he could be prevented from recovering. The plaintiffs have proved, that all the shares and proportions of the stepmother and brothers and sisters of the plaintiff's testator, are released and discharged, except the interest of James and Harriet Weakly, who were two of the four children of Murgaret the sister of the testator, and were each entitled to a fourth of their mother's share of the estate of the intestate, and except the interest of Eleanor Anderson, who was entitled to a tenth of the sum, at which the estate was appraised. It appears that this estate was included within the Manor of Springetsbury, and is subject to several years arrearages of quit Lancaster. SHARE V. ANDERSON'S executors. rent. Under a strict construction of the covenants in the 1821. deeds, warranting against all incumbrances, the arrearages of quit rents would be included within the warranty. It is also and another contended, that the widow of the plaintiff's testator, has a fair claim of dower upon the estate conveyed, inasmuch as the acknowledgment of the deed for the land in York county, was made in Lancaster county, before a justice of the peace of York county. The Act of Assembly, on this subject, directs that all bargains, and sules, and deeds and conveyances of lands, tenements and hereditaments may be recorded, but before the same shall be so recorded, the parties concerned shall procure the grantor, or bargainor named in every such deed, or else two or more of the witnesses, (who were present at the execution thereof) to come before one of the justices of the peace of the proper county where the lands lie, who is empowered to take such acknowledgment. The acknowledgment taken here is made in strict conformity, to the words of this Act of Assembly—it is made before a justice of the peace of the proper county, where the lands lie, and I am not satisfied, that it is inconsistent with its spirit. The taking an acknowledgment of a deed, is not local in its nature, it is a mere personal trust and confidence; and I am not prepared to say, that this acknowledgment is illegal. But the wife whose acknowledgment is objected to, is now a widow, and capable in her own rights of becoming a party to a contract, or of surrendering up any right which may be vested in her. She is a party to this suit, she has never made a claim of dower, and it appears to me that by her acting as executrix, and becoming a party to this suit, she would be debarred of any claim of dower which she might otherwise have. It is contended on the part of the plaintiffs, that the deeds containing a clause of indemnity against incumbrances, if any incumbrances exist, the remedy is on the covenant; and it is no defence to a suit on the bond for the consideration money, &c.; and that the incumbrances form no defence until it be shewn that there has been an eviction of the land by the party having a lien; or that the money has been paid by the defendants to the holders of the incumbrances, or in consequence of them, and to the extent of that payment, and no further. Upon a careful consideration of the law upon this subject, I do not think an eviction necessary, nor that there should be an actual payment of the amount of the incumbrances. |