In Pennsylvania, the law is different in many respects from that which prevails in other States. In New York, the chancellor says, that "if a person is in the actual enjoyment of land, and no person asserts, or takes any measure to assert a hostile claim, he cannot be permitted, on suggestion of a defect or failure of title, to stop the payment of the purchase money. Can this Court proceed to try the validity of the outstanding claim, in the absence of the party in whom it is supposed to reside? Or must he be brought into Court, against his will, to assert or renounce a title, which he never asserted, and perhaps never thought of? I apprehend, there is no such practice or doctrine in this country, and that a previous eviction or trial at law, is, as a general rule, indispensable. Perhaps an outstanding incumbrance, either admitted by the party, or shewn by the record, may form an exception, in cases of covenants against incumbrances." The purchaser ther. has a right to retain the amount of the incumbrances. You will ascertain what the amount of them is, and if there be no fraud in the case, the plaintiffs are entitled to your verdict for the balance. During the trial, three bills of exception were taken by the defendants below, to the opinion of the Court, on points of evidence. 1. The defendants offered evidence to prove the solvency of the purchasers at Henry Share's sale of the lots laid out on the lands purchased, which sale took place on the 11th December, 1813, and that the purchasers refused to pay, on account of the incumbrances and defect of title. The plaintiffs objected to this evidence, and the Court overruled it. 2. The defendants offered to give in evidence, the records of several suits brought in the Common Pleas of Lancaster county, by Henry Share, against several of the purchasers of lots mentioned in the vendue list, heretofore given in evidence, and that Share was uniformly defeated in those suits, in consequence of the distributive shares of the stepmother of James Anderson and his brothers and sisters, in the valuation money of the estate not having been released. To which the plaintiffs objected, and the Court overruled it. 3. The defendants, in order to shew that the concealment by James Anderson from Henry Share, of the incumbrances SHARE V. ANDERSON'S executors. of his step mother, brothers and sisters, was fraudulent, of- 1821. fered to prove, that a short time before the date of the Lancaster. articles of agreement, Anderson offered to sell the property and another before mentioned to the witness, who told him that he had understood there were incumbrances on it, which had never been discharged, but at the same time informed Anderson, he did not believe what he heard, as he had before bought part of the same land, and got a deed from him, which shewed that the land was absolutely conveyed by his father to him; Anderson said, that those who said there were incumbrances upon the land, knew no better; that there were no incumbrances upon it: which testimony was objected to by the counsel of the defendant, and the objection sustained by the Court. The jury found a verdict for the plaintiff, and judgment was rendered accordingly. The plaintiffs in error in this Court assigned the following errors. 1. The Court erred, in not answering the questions, in their charge, propounded to them by the counsel for the defendant. 2. They also erred, in delivering it as their opinion to the jury, that a justice of the peace for the county of York, had authority to take the acknowledgment of a feme covert to a deed, in the county of Lancaster, conveying lands situate in the county of York: and that even if that were not the law, the feme covert, as executrix of her husband's will, being one of the plaintiffs in this suit, would have her right to dower extinguished. 3. They also erred, in overruling the testimony offered by the defendants, and for the rejection of which their counsel have taken three bills of exception. 4. They also erred, in instructing the jury, that notwithstanding Henry Share might have been induced to adhere to the articles of agreement, and accepted the deed, in consequence of an express promise made by James Anderson, that the releases should be obtained, and if they were not, that he (Share) should sustain no loss on that account, yet, that this promise was merged in the acceptance of the deed, and if it were not, the measure of damages would be, not VOL. VII.-I 1821. Lancaster. SHARE and another v. ANDERSON'S the actual loss sustained in consequence of its breach, but merely the amount of incumbrances unpaid at the time of the institution of the suit. 5. They also erred, in stating it as their opinion to the executors. jury, that the agreement of the 4th October, 1813, to give a sufficient title, was satisfied by the execution and delivery of the deed, and its acceptance by Mr. Share. 6. They also erred, in instructing the jury, that they should altogether disregard the testimony of Dr. Watson and Henry Leibhart, unless they were of opinion that Anderson was guilty of fraud. 7. They also erred, in instructing the jury, that it would be right to lay out of the case all the testimony which had been given, respecting the laying out of this land into lots, the agreement and settlement of the parties concerning it, the sales of those lots, and any profit or loss accruing from the sales or other dispositions; also, that if there was no fraud in the case, they should 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 were guilty of fraud, &c. Buchanan and Hopkins, for the plaintiffs in error. Jenkins and Rogers, contra. TILGHMAN, C. J., took no part in the decision, having been absent during the argument. The opinion of the Court was delivered by GIBSON J. In the Court below, the defence was put on a supposed fraud of James Anderson, the plaintiff's testator, in procuring Henry Share, one of the defendants and the principal in the transaction, to purchase the land for which the bond was given: on the breach of a collateral agreement by Anderson to procure, within a specified period, certain incumbrances on the property to be extinguished: on the existence of some of those incumbrances, as still outstanding; and on a defective acknowledgment of the deed of convey ance by Anderson's wife, who is now an executrix of his 1821. will, and a plaintiff in the cause. Under some of these Lancaster. heads, may every principle be ranged, which the Court was called on to decide. As to the first, the defendants had the benefit of their allegation to the extent of its value as supported by the evidence. The jury were instructed, that if Anderson the vendor took pains to conceal the incumbrances from Share, and thus induced him to accept a deed which he would not otherwise have done, it was such a fraud as entitled him to rescind the contract altogether; but the Judge at the same time expressed an opinion that the defendants had failed in their proof; and whether in this he were right or wrong is not for us to enquire. But an exception was taken to the rejection of evidence to prove that, a short time previous to the date of the articles, Anderson had offered to sell the property to the witness, who observed, he understood there were incumbrances on it, but that he did not believe it; and that Anderson replied that they, who said so, knew no better, for there were none. Now how this declaration, even granting, for the sake of the argument, that it evinced a disposition to cheat the person to whom it was made, could be called in aid of evidence of fraud in a subsequent and distinct transaction not then even in contemplation, is what I cannot comprehend. In this part of the case therefore, I discover no error. Under the second head, a breach of the parol agreement was insisted on, not as failure of consideration of the bond, but as special damage collateral to the consideration; which, therefore could operate, if at all, only as a set off. It is unnecessary to decide whether, under the pleadings, a distinct substantive cause of action could be urged as a set off, as it is clear the parol promise could, under the circumstances of the case, have no operation in any shape. It was not pretended that this part of the defence, was connected with the allegation of fraud; but it was urged on the ground of the abstract effect of the promise itself, which, from its nature, carries with it an assertion of notice, and precludes the idea of Share having been unapprised of the existence of the incumbrances at the execution of the deed, or even at the date of the articles. Dr. Watson testified, that immediately after SHARE and another V. ANDERSON'S executors. 1821. Lancaster. SHARE υ. executors. the articles were signed, he informed Share, at the request of Anderson, that there were liens; on which Anderson said he would procure releases of them, and that at all events Share and another should be no loser for want of them and Leibhart swore, ANDERSON'S that immediately before the execution of the conveyance made pursuant to the articles, Share expressed dissatisfaction, because the releases had not been obtained; on which Anderson again told him not to be uneasy, for he should suffer no loss on that account, and Share being satisfied, the conveyance was then executed. This was all the evidence of the promise relied on. In Pennsylvania we have, unquestionably gone further in admitting the declarations of parties, made at the execution of a conveyance, than the decisions of any Chancellor would warrant; but this departure from the chancery rules of evidence, has been regretted by some of the soundest lawyers of the State, and every days experience proves its want of policy. In giving effect, therefore, to parol evidence of the intention of the parties to a written contract, I will never consent to go a jot beyond the adjudged cases, and in truth, I would much rather recede than advance. Here, however, we have a very different case; for the attempt is not to control the written agreement, but to set up a parol promise, independent of it, as the subject of a substantive and distinct remedy. Now there is no wiser rule, and certainly none better established, than that a contract shall not rest partly in writing and partly in parol. But further, the execution of a deed, being the solemn and deliberate creation of the evidence of the contract, is the consummation of all preparatory negociations and stipulations, even where there are articles of agreement and this rule extends so far, that although there may be collateral covenants, not executed by delivery and acceptance of a deed, the law raises a presumption to the contrary, which can be rebutted only by a manifest inconsistency between the provisions of the deed and those of the articles. But here the deed contained a covenant of warranty against the very incumbrances that were the subject of the promises, and it would therefore be impossible, even if there could be such a thing as a collateral parol promise, to say that it was not merged in the deed; for if it were not, the purchaser might proceed at the same time on the promise and on the covenant: and, to say that he would be |