and another v. bound to elect' his remedy, or that he could recover only 1821. one satisfaction, admits the identity of the subject matter Lancaster. of the written and of the parol contract, and, in that view, SHARE is an argument in favour of the latter having merged in the former. The jury, therefore, were rightly directed, that unless the acceptance of the conveyance were procured by deceit, the declaration of the vendor ought to have no operation. Under this head, also, may be ranked two bills of exceptions to the opinion of the Court, rejecting evidence of the solvency of persons to whom Share had sold certain portions of the land; and that they had defeated him by setting up these liens as a defence to suits brought for the purchase money. The evidence was offered to shew the nature and extent of the special damage suffered from the breach of the promise; and its competency, therefore, depended on whether the promise itself created any distinct responsibility that could have an effect on the event of the cause. I am of opinion it was properly excluded. Then as to the third head. The effect of incumbrances as shewing failure of consideration or a defect in the title, is certainly different in Pennsylvania from what it is in England, where an eviction at law is an indispensible ingredient of a claim for relief against payment of the purchase money. Here it is sufficient that eviction may take place. How far then had the incumbrances in the present case been actually discharged, and were there any still outstanding, which the Court did not direct the jury to allow? The compensation decreed by the Orphans' Court, in lieu of the interest which the step mother and the twelve brothers and sisters of the vendor originally had in the estate, and which was divested by the decree confirming the estate in him, was a lien on the land; but all their respective shares had incontestably been discharged, except the share of one of the sisters, which, under the direction of the Court, was allowed in the verdict; and also the share of another sister, only half of which was al lowed. The last mentioned sister had died leaving four children; two of whom had not released, and their part of their mother's share was consequently allowed; but the other two on coming of age had executed releases, the validity of which is denied, on the ground that the interest of the mother, having ANDERSON'S executors. 1821. Lancaster. SHARE and another V. ANDERSON'S executors. been turned into personalty by the decree of the Orphans' Court, could be released only by her personal representative, and not by her heirs, as these had no descendible interest in the money decreed to her. Such releases, I admit, are not valid at law; but they are undoubtedly valid in equity, and therefore good here, especially as the defendant sets up an equitable defence. If the money had been actually paid to the children to whom it was ultimately to go, would not chancery restrain an executor or administrator of the mother from prosecuting an action for it at law? Payment to the children would be good against every one but creditors, and here it does not appear that there were any; for we must intend the Judge said the releases were good only under the circumstances of the case, and as the evidence has not been brought before us by a bill of exceptions, we cannot say this was error. But these incumbrances were not, as seems to have been taken for granted at the trial, dependant for their effect on the covenant of warranty which was specially intended to protect against them; for this equitable defence rests not on the breach of a covenant, but on failure of consideration, and might have been equally urged if the conveyance had contained no warranty at all. There is however another incumbrance on which the warranty has a direct operation. The land lies within the manor of Springetsbury, and is subject to a quit rent to the heirs of the late proprietaries; and of these facts I will intend that the vendee was fully apprised, as the nature of the title must have led him to a knowledge of the first, and the reservation of quit rents in the proprietary manors, being not only a matter of public notoriety, but also recognised in the act which divested the right of the Penn family in their other lands, is to be considered as notice of the second. Under these circumstances it might admit of a doubt, whether a purchaser, even without a covenant against the quit rent, could retain any part of the purchase money. Where however there is notice of an incumbrance which is contingent, and the vendor covenants generally against incumbrances, the vendee will be considered as having chosen his remedy, and will not be permitted to retain. Vane v. Lord Barnard, Gilb. Eq. Rep. 6. Here if there had been no covenant, and the vendor had been ignorant of the existence of a quit rent, the jury might have deducted its SHARE and another V. ANDEROSN'S executors. estimated value from the amount of their verdict: but the 1821. very circumstance of exacting a covenant against a known Lancaster. incumbrance which the vendee may extinguish, is inconsis. tent with an intention that more should be retained than what actually affected the land by being then due. It was contended that the whole value of the quit rent should have been estimated and deducted, but the Court directed the jury to allow only arrearages due at the time of the contract; and these, as being a present charge, were properly a subject of defence, on the same ground that the liens created by the proceedings in the Orphans' Court were allowed; but the vendee could not retain to meet charges accruing afterwards. Lastly, as to the defect in the title. The acknowledgment of the conveyance in Lancaster county, although before a justice of the peace of York county in which the lands lie, was undoubtedly void. The taking of the separate examination of a feme covert is a judicial act, and, therefore, as local in its nature as any other within the compass of a justice's official duty, who can do no act nor exercise any judicial function out of his proper district or county. If jurisdiction were given to justices of the peace for considerations that relate only to their office or persons, it is not easy to discover any thing like a reason for the Legislature having attached any local qualification to it; for the magistrates of one county possess, in contemplation of law, as competent a share of talents and integrity as those of another; and therefore this official trust might, as to that, have been as well confided indiscriminately to all the justices in the State, as to those of the county where the lands lie. But although the dower of the vendor's widow was not barred by the acknowledgment of the conveyance, yet she prosecutes this suit in direct opposition to her right, and has therefore precluded herself from urging it hereafter. A party in her situation will never be permitted to affirm an act in part, and disaffirm it in part ; but shall be put to his election to confirm it altogether or abandon it altogether. This principle, which is universal, and said to prevail in the laws of every country, is applicable to all interests, whether of femes covert or infants; whether immediate, remote or contingent; of value or of no value; and as well to deeds as to wills. It is this principle-that none 1821. Lancaster. SHARE and another V. ANDERSON'S executors. shall claim in repugnant rights, and that he who would take the benefit shall not dispute the title,-which prevents a tenant from setting up title against his landlord. Whether the widow had a beneficial interest under the will is immaterial: her having joined in a suit to recover the price of a title, which was sold as a good one, was a determination of her election, which shall forever estop her from disputing the validity of the title, to which, after every legal disability was removed, she has thus become a party. The error in the charge of the Court respecting the acknowledgment of the deed, therefore, was one that did not prejudice the defendants; as the vendor's widow, who is an executrix of his will and one of the plaintiffs in the suit, ratified the sale and cured the defect in the title. The judgment is affirmed. Judgment affirmed. 7sr 64 150 287 7s 64 160 98 KAUFFELT with notice to BEAR, and other judgment creditors of DANIEL TREICHLER against BowER. Where an made of land, purchase mo session deli vered to the ERROR to the Court of Common Pleas of York county. This action was brought in the Court below, by Jacob given for the Bower against John Kauffelt, sheriff of York county, and the ney, and pos- Court directed notice to be given to the judgment creditors of Daniel Treichler. It was instituted for the purpose of vendee, part trying the right of the plaintiff to the purchase money arising chase money from a sale by Kauffelt of a tract of land belonging to Daniel being paid, and the bond Treichler, and the following appeared on the trial in the of the vendee, Court below, to be the circumstances of the case. and a surety of the pur taken for the residue thereof, the vendor has not a lien for such residue of the purchase money, against judgment creditors of the vendee, whose judgments are subsequent to the conveyance, though they had notice that the balance of the purchase money remained due. On the 3d of December, 1813, the following agreement 1821. under seal, was made between Jacob Bower and Daniel Lancaster. Treichler. KAUFFELT and other judgment TREICHLER V. Bower. An article of a bargain, between Jacob Bower, in Man- creditors of chester township, York county, on the one part, and Daniel Treichler, in Donegal township, in Lancaster county, on the other part, as follows, namely, Jacob Bower sells to Daniel Treichler his plantation adjoining George Day, Abraham Leal, the deceased Matthias Gab, and the river Susquehanna, containing seventy two acres and allowance, or the usual addition, (six acres), in the hundred. That is to say, Jacob Bower sells the aforesaid seventy two acres on the condition, when Daniel Treichler lets the land be surveyed, what it measures more than seventy two acres, that he has in the bargain for surveying. But if it measure less than the seventy two acres and the allowance, then Bower must deduct as much as it measures less. Bower sells the above mentioned piece of land, and all that is built, and planted on it, namely, two houses, one barn, and the grain in the ground by the acre, for the sum of three hundred dollars the acre, the half in hand, namely, till the first day of April, 1814, and the balance in five yearly payments. Jacob Bower promises Daniel Treichler, to give him a good and indisputable title by the first day of April, 1814, and possession when he has paid the hand money. Bower allows Treichler in the bargain, the half a fish pot, ten hogsheads, a ton of plaster, and the half the wheat fan. We the undersigned, bind ourselves the above mentioned bargain to keep and to fulfil, in the sum of $43,000. This we testify with hand and seal, this day 3d December, 1813. On the 7th December, 1813, articles of agreement were entered into between Daniel Treichler and John Smith, by which Treichler agreed to sell one half the land to Smith. On the 12th April, 1814, Bower and wife conveyed all their right and title to the property, to Treichler in fee, in consideration of the sum of 21,600 dollars, and on the same day VOL. VII-I |