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to fill up the application with his own hand, and, had he done so,
the printed form would have been an unerring guide. He thought
proper, however, to trust to the defective capacity of the surveyor,
and it is our business to prevent the hardship of the case from
running away with the law.

The plaintiff, then, is bound by the application as it was filled
up, and it is faulty in a decisive particular. It was made a lead-
ing condition that it contain a description, not only of the place,
materials, dimensions and construction of the property, but also
of " its relative situation as to other buildings, and distance from
each if less than ten rods." The principal building of the tannery
was within twenty feet of the saw -mill ; and though its contiguity
materially increased the risk as to the whole, that fact was not
stated. But it has been argued that as the property was insured
entire, the condition has regard, not to particular parcels of it, but
to other buildings in the neighbourhood ; or, to express it differ-
ently, buildings not. included in the same policy. That construc-
tion rests on a single word, and it is too literal to be sound. The
object was to have a disclosure of every material cause of danger,
and whether it were internal or external could not be of conse-
quence, provided a greater degree of risk were induced by it. It
is that which regulates the premium, and it is therefore important
to be known. Besides, it was in clear proof that uninsured build-
ings were within the distance. There has been, then, a fatal want
of compliance with the particular requisite of the conditions, and
this makes it unnecessary to examine the other points of defence,
further than to say they would probably not be found tenable.

The case before us differs from Moliere v. The Pennsylvania
Fire Insurance Co. in the important particular that the secretary,
who in that case was the agent and man of business of the Com-
pany, as a cashier is the agent and man of business of his bank,
was the author of the misdescription, if there was one. A full,
particular and true description of the building had been verbally
delivered to him according to the tenor of the Company's printed
proposals and conditions, which did not require it to be in writ-
ing; and in that particular, also, there is another material differ-
ence. Nothing required by the conditions, nor anything material
to the risk, had been kept back ; and from the perfect disclosure
thus made, the secretary culled the description with which he
thought proper to fill up the order and the policy, calling the
building a brick ice-house, without noticing the fact that the brick
walls were surrounded by a screen of boards a few feet distant,
to protect them from the violent action of the heat or the external

July 1844.] OF PENNSYLVANIA. 353

[The Susquehanna Insurance Co. v. Perrine.]

air. For want of a more appropriate designation, he chose to
insure this nondescript and its appendage as a brick ice-house ;
and, as the walls were the principal, while the screen followed
them as an accessory, who can say that he did not call it by its
name ? But if there were a true representation of every material
circumstance, the name would be unimportant; for the parties
might, as in fact was done, show the meaning of it by parol evi-
dence, introduced, on a very familiar principle, not to contradict
the written description, but to explain a latent ambiguity in it.
It was no more necessary to name the screen than it was neces-
sary to name the roof, for each was equally a part of the building;
and if the ensconcing of the brick walls in a wooden shelter were
calculated to enhance the risk, the evidence was proper to show
that it had not been concealed. But the ground on which the
cause was put by the Judge who delivered the opinion of the
court, seems to me impregnable. A policy of insurance, like any
other instrument, may be reformed for mistake of the scrivener ;
and had the Company availed itself of the accidental misconcep-
tion of its officer, it would have committed a fraud. But, in the
case before us, all was done at the peril of the insured ; and the
defaults of the surveyor being his defaults, the Company might
conscientiously avail itself of them. The jury ought, therefore,
to have been told that he was not entitled to recover.

Judgment affirmed.

Dickinson against Voorhees.

In an action of debt upon a bond given for the purchase money of land, in
which a defective title is set up as a defence, the plaintiff may give evidence of
acts done by himself to perfect the title after suit brought

V. sold and conveyed to D. several tracts of land, describing each tract par-
ticularly, in the deed, and as containing so many acres, amounting in the whole
to 3235 acres, and took his bond for the purchase money. Upon actual survey it
was subsequently ascertained that one of the tracts was deficient in quantity 445
acres : held that this did not furnish the vendee with a defence against the pay-
ment of his bond.

ERROR to the Common Pleas of Tiosa county.

James L. Voorhees against Samuel Dickinson. This was an
action of debt on a bond conditioned for the payment of $15,000.
The plaintiff had sold and conveyed to the defendant thirteen tracts
of land, describing each separately, and as containing a certain
number of acres each, and, in the whole, 3235 acres, and took the
bond upon which this suit was brought for part of the purchase
vii. 45 SB*

354 SUPREME COURT [Sunbury

[Dickinson v. Voorhees.]

money. It subsequently appeared that there was a deficiency, in
quantity, of one of the tracts, to the amount of 445 acres, and the
vendee set it up as a defence to the payment of his bond. The
several bills of exception to the opinion of the court, receiving and
rejecting testimony, are particularly stated in the opinion of his
Honour who delivered that of the court.

The court below (CONYNGHAM, President) instructed the jury
that the defence set up by the defendant could not avail him, and
directed the jury to render a verdict for the defendant.

Williston and Greenough, for plaintiff in error, argued that the
difference in the quantity of the land and that conveyed is so great,
as to entitle the party to relief either on the ground of a gross
mistake of both parties, or the fraud of the vendor. Sug. Vend.
200; 1 Mad. Chan. 420; 2 Sto. Eq. 89, sect. 779; Peters' 's C. C.
Rep. 49; 5 Binn. 365; 4 Kent 467, in note; 1 Bay 256; 1 Sto.
Eq. 157, 144 ; 3 Watts 367 ; 4 Watts 405 ; 14 Serg. $ Rawle 206.

Maynard, for defendant in error. The contract is executed,
and the party is not entitled to relief, unless there has been fraud
or gross mistake in its execution ; and here there has been neither
one nor the other. It is not pretended that the vendor knew any
more about the quantity of the land than the vendee ; he sold it,
as he had purchased it, as a tract of land supposed to contain the
quantity mentioned : and if it had contained 400 acres more, in-
stead of less, he would have had no remedy to recover the price
of the surplus. In this particular the rights and remedies of the
parties should be the same. 3 Watts 367 ; 4 Kent 467 ; 2 Sto.
Eq. 779 ; 1 Serg. $ Rawle 166 ; 1 Yeates 322 ; 6 Serg. $ Rawle
488 ; 13 Serg. $ Rawle 143, 160 ; 4 Serg. fy Rawle 488 ; 6 Binn.
102 ; 13 Serg. & Rawle 136 ; 2 Watts 1 18 ; 2 Rawle 1 14 ; 6 Watts
112; 3 Pen n. Rep. 452; 5 Watts 311 -, VPenn. .Rep. 533; 1 Watts
<$ Serg. 83 ; 5 Watts $ Serg. 51 ; 4 Mason 414.

The opinion of the Court was delivered by

KENNEDY, J. This action is debt, founded upon a bond given
by the plaintiff in error to the defendant, for the payment of the
residue of the purchase money of upwards of 3000 acres of land
lying in one body, but consisting of thirteen distinct parcels or
tracts, each parcel described in the deed of conveyance as con-
taining a certain number of acres, and, in the aggregate, accord-
ing to the description, about 3235 acres. The gross sum of $20,000
is mentioned, in the deed, as the consideration for the whole quan-
tity of land conveyed. It was admitted, on the trial, that that
sum was the amount of the purchase money; that $5000 thereof
had been paid, and that the bond in suit had been given to secure
the payment of the residue, upon which partial payments had also
been made. But the ground of dispute was a want of title on the

July 1844.] OF PENNSYLVANIA. 355

[Dickinson v. Voorhees.]

part of Voorhees, the defendant in error, at the time of the con-
veyance, to, as also a deficiency in the quantity of, one of the par-
cels or tracts sold, which is described in the deed of conveyance
os follows, to wit, " also a tract of land marked on the map of
Tioga county in the name of Samuel Clendening, bounded north
by warrant No. 4460, James Wilson warrantee ; on the east and
south by warrant No. 585, Andrew Beatly warrantee, and by
lands now owned by Stowell and Dickinson ; and on the west by
warrants Nos. 4447 and 4448, James Wilson warrantee, contain-
ing 785 acres, and being the same lot of land sold to Chauncey
Alfprd by Elisha Hill, on the 9th day of June 1828, for taxes." The
plaintiff in error, who was the defendant below, for the purpose
of showing that Samuel Clendening never had any warrant from
the Commonwealth for the land thus described, gave in evidence
a warrant granted to him on the 13th December 1804, No. 5894,
for 83 acres of land within the last purchase made of the Indians,
and a survey made thereon of 81 acres and 40 perches, lying in a
different part of the State from that described in the deed, in the
name of Samuel Clendening, together with a certificate from the
surveyor-general that the same warrant was the only one to be
found in his office, in the name of Samuel Clendening, for land in
the last purchase. The plaintiff in error, by his counsel, offered
to prove further, " that he made the purchase of the tracts con-
tained in the deed for the purpose of a lumbering establishment ;
that the tract supposed to exist, and called in the deed the Clen-
dening tract, was the most valuable part of the land described and
mentioned in the deed, on account of the quantity and quality of
the timber, and its contiguity to mill-privileges. That the said
tract containing 785 acres, located as bounded east by warrant in
the name of Andrew Beatly, mentioned in said deed, and north by
warrant in the name of James Wilson, No. 4460, and south by
said warrant in the name of Andrew Beatly and land of Stowell
and Dickinson, taken from said purchase would deduct more than
half the value of said purchase ; that the said plaintiff, previous
to the sale to defendant, claimed the tract thus located as his, and
exercised acts of ownership over it ; that said tract, thus located,
was generally called the Clendening or Alford tract, and also to
prove the relative value of said tract, compared with the whole
according to the whole purchase money." The court permitted
the defendant, under the prima facie snowing of failure of title to
the Clendening tract, to give all the evidence thus offered in rela-
tion to the comparative value of the Clendening lot as described
in the deed and proved by William Bache, but not to show gene-
ral reports as to the location of the tract, or the evidence of the
plaintiff's former claim to land west of the warrant lines of Nos.
4447 and 4448, or any evidence to show the value of the land west
of such warrant lines, on the ground that a deficiency of land re-
quired that it should be so located irrespective of the boundaries

356 SUPREME COURT [Sunbury

[Dickinson v. Voorheee.]

fixed in the deed : to which opinion of the court the counsel of the
plaintiff in error excepted ; which forms the first error assigned.
It would certainly have been highly improper to have admitted
general rumour as evidence of the location of what was called the
Ciendening tract. It was not purchased or conveyed by any such
location, but according to the boundaries and location set forth in
the deed, which general report might have contradicted, and most
probably would have done so, or it would not have been offered,
and therefore was inadmissible for this reason alone, independent
of the rule that its truth cannot and ought not to be relied on in
such cases. Neither was evidence of the defendant in error's for-
mer claim to the land west of the warrant lines of the Nos. 4447
and 4448 admissible, without showing also that such claim was
either made known to the plaintiff in error before or at the time
of sale. For unless it were so he could not have relied on, or
been deceived by it. And evidence to show the value of the land
west of the warrant lines of Nos. 4447 and 4448 was equally inad-
missible, because it was not offered to be shown that the defend-
ant below had any reason to believe, from what the plaintiff below
either said or did, that the land west of those lines formed any
part of his purchase. The plaintiff in error then proved by Wil-
liam Bache that the whole quantity of land lying within the limits
and bounds of the Clendening tract, as described in the deed of
conveyance from the defendant in error to the plaintiff in error,
only amounted to 340 acres, besides six per cent, allowance for
roads, &c. For this land the defendant in error offered to show
that on the 9th of May 1840, after he sold and conveyed the land
above-mentioned to the plaintiff in error, he obtained a warrant
from the Commonwealth, in pursuance of which he had a survey
made and returned on the 26th of October 1840, and therefor ob-
tained a patent bearing date the 10th of March 1842; to which
the counsel of the plaintiff in error objected ; but the court over-
ruled the objection and admitted the evidence ; wherefore the
counsel excepted ; and this exception forms the second error as-

It is objected that this evidence was inadmissible because it was
not competent for the plaintiff below to give evidence of a title
acquired by him to the land, or any portion of it, after he had sold
and conveyed it to the defendant below. It is proper to premise
here, that although this suit is brought to recover what may be
considered, in reality, the residue of the purchase money of a large
quantity of land, yet it is not brought on an executory contract for
the sale and purchase thereof, with a view to enforce the execu-
tion of such contract, but is brought upon a bond given by the
defendant below to the plaintiff, upon a final consummation of the
execution of the original executory contract made between them
for the sale and purchase of the land. Upon this bond the plain-
tiff below had a good legal title to demand and recover the balance

July 1844.] OF PENNSYLVANIA. 357

[Dickinson v. Voorhees.J

remaining unpaid on it ; for the defence set up by the defendant
below to the plaintiff's recovery is, that part of the consideration
for giving the bond, as he alleges, never existed or has failed, and
therefore he ought not to be compelled to pay. But this, at most,
admitting it to be so, is only a defence grounded upon equitable,
and not upon what are properly termed legal principles. The
defendant below had no covenant, in the deed of conveyance made
to him, upon which he could rely for a legal defence. It contains
no guaranty or covenant that the quantity of land mentioned in
the several parcels shall hold out ; nor does it contain any cove-
nant of seisin thereof, on the part of the vendor, or that he had a
right to sell and convey the lands therein mentioned as he did.
The only covenant in the deed is that of a general warranty. But
that could not avail the defendant below, on the trial, by way of
set-off or otherwise, as he had never been evicted from, or dis-
turbed in the possession of the land ; for until an eviction of the
grantee, or a demand made of the land from him by one having
a better title for it, the covenant of warranty cannot be said to be
broken, and consequently no action or set-off can be sustained
upon it. But the evidence offered and given by the plaintiff below,
of title acquired by him to what was called the Clendening tract,
though after he had sold and conveyed to the defendant below,
went to show that the plaintiff below had done all that was requi-
site to enable the defendant to hold and enjoy all the land em-
braced within the limits and bounds of the Clendening tract, as
mentioned in the deed, against not only the plaintiff below, him-
self, but against all the world ; and therefore upon neither equitable
or legal grounds had he sustained, or could he thereafter sustain
any loss, unless it may be that he has not got as many acres as he
expected, seeing what was called the Clendening tract has fallen
short 445 acres of the quantity mentioned in it in the deed. The
evidence was, therefore, clearly admissible, for the purpose of
showing that the plaintiff in error had, in effect, a right, by means
of what the defendant in error had done, to hold, against all the
world, all the land lying within the limits of the Clendening tract
as set forth in the deed.

The third error is an exception to the charge of the court, for
instructing the jury that the plaintiff below was entitled to recover
the whole amount of his claim with interest ; and so should be
their verdict. It appears from the record and the evidence given
on the trial of the cause, that the lands sold and conveyed by the
plaintiff below to the defendant, though consisting of thirteen dis-
tinct parcels adjoining each other, formed the subject of but
one entire contract between the parties, for which the defendant
below agreed to give the plaintiff the gross sum of $20,000. They
had before them, at the time, what they considered some evidence
of the number of acres contained in each parcel, and having car-
ried their contract fully into execution upon the basis of that evi-

358 SUPREME COURT [Sunbury

[Dickinson v. Voorhees.]

dence, it must be taken that they agreed and were willing to abide
by it, and to run the risk of its being correct or otherwise. The
evidence of the location and the quantity contained in the parcel
called the Clendening tract, appears, from the face of the deed, to
have been the map of Tioga county, in which the lands all lay at
the time of sale. This map, it seems, is kept up in the commis-
sioner's office of that county, and open to the inspection of every
one, that they may ascertain the location of unseated lands about
to be sold for taxes ; and that the plaintiff below claimed the Clen-
dening tract, as described on this map, under a treasurer's sale
made of it for taxes. In short, it would appear, that the parties
respectively had the same means of knowing the quantity or num-
ber of acres contained within the limits of what was called the
Clendening tract, as also every other tract sold and conveyed by
the deed ; so that there was not the slightest ground even to sup-
pose that the plaintiff below had practised a fraud of any kind
whatever upon the defendant, in making the sale. And, indeed,
it is evident that the quantity of each tract is given in the deed as
part of the description thereof, and not with a view to bind the
vendor to make it good in case of a deficiency being thereafter
discovered. Had such a thing been within the view of the parties,
it is reasonable to believe that they would have provided for a
future survey, in order to have the quantity ascertained correctly,
and, in case of deficiency, that so much per acre should be de-
ducted from the price ; and, on the other hand, in case of excess,
that so much should be added to it. Suppose the Clendening tract
had been found to contain 1200 acres ; can it be believed, or even
imagined, that the plaintiff below could have recovered anything
beyond the residue of the $20,000 remaining unpaid ? It is im-
possible to conceive, as it appears to me, any satisfactory ground
upon which he could have accomplished such a thing. And in-
deed it may be, for aught that has been shown to the contrary, if
all the other tracts were carefully surveyed, that the defendant
below has got an excess in them, beyond the quantity mentioned
in the deed, exceeding the deficit in the Clendening tract; so that
he may have, in the whole, the aggregate of the several quantities
mentioned in the deed. But be this as it may, the principles laid
down in Smith v. Evans, (6 Binn. 202) ; and in Hagerty v. Fagan,
(2 Penn. Rep. 533), settle this case in favour of the plaintiff below.
In each of those cases the original contract was for the purchase
of the land at a fixed price per acre, and, in this respect, more
favourable for extending relief to the purchaser than the present,
though the deficit was not so great, in proportion to the whole
quantity purchased, as the present. But still, notwithstanding,
inasmuch as the parties afterwards carried into execution their
contracts respectively, by the vendor, in making a deed of convey-
ance of the land to the vendee, according to the extended quantity,
without measuring the same, and the vendee's giving to the vendor

July 1844.] OF PENNSYLVANIA. 359

[Dickinson v. Voorhecs.]

his bonds securing the payment of the purchase or balance of the
purchase money according to the estimated or reputed quantity, it
was held that the parties were bound by such execution of the
contract, and that the vendee was tkereby precluded, afterwards,
from claiming an abatement of the amount for which he gave his
bonds in the first case, where the deficit was equal to about an
eleventh part of the whole quantity of land sold ; and the second
case, where the deficit was a little above a fourteenth of the whole
quantity sold. In the present case the deficit is a little above
one-seventh of the whole quantity sold ; but in Stebbins v. Eddy,
(4 Mason's Rep. 414), where the deficit was nearly equal to a
fifth of the whole quantity sold and conveyed, yet Mr Justice
STORY held that the purchaser, who had paid the amount of the
purchase money at the rate of $50 per acre on an estimated quan-
tity of 50 acres, which fell short, upon measurement afterwards,
nine and a half acres of that quantity, was not entitled, even in
equity, to recover back any portion of the purchase money. We
are therefore of opinion that the court charged the jury correctly.

Judgment affirmed.

Williams against Freeman.

The Act of Limitations is not a bar to an action against an administrator
founded upon a devastavit.

ERROR to the Common Pleas of Wayne county.

This was an action of debt by Gersham Williams against
Calvely Freeman, who was the administrator of Baxter Bicknell
deceased, charging him with a devastavit to the amount of a judg-
ment which the plaintiff had previously obtained against the
defendant as administrator, for a specialty debt owing by the
intestate. A judgment de bonis was confessed by the defendant
on the 27th April 1830, and afterwards revived by an amicable
judgment de bonis on the 24th August 1831, upon which a feri
facias issued to January term 1831, which was stayed by the
plaintiff's attorney. On the 30th April 1832, an alias fieri facias
was issued and levied on a tract of land, which was subsequently
condemned and sold on a venditioni exponas for $100. On the 1st
January 1833, a fieri facias was issued for the residue, upon which
there was a return of nulla bona. On the 15th July 1841, this
suit was brought. It appeared on the trial that the assets which
had come to the hands of the defendant had been applied to the
payment of simple contract debts ; but it also clearly appeared

360 SUPREME COURT [Sunbury

[Williams v. Freeman.]

that this devastavit complained of had been committed by the de-
fendant more than six years before the institution of this suit.
Whereupon the court below instructed the jury that the Act of
Limitations of 1713 was a i>ar to the plaintiff's recovery, and
directed a verdict for the defendants.

Kiddcr and Greenough, for plaintiff in error. This case does
not fall within the operation of the Statute of Limitations of the
27th March 1713. The action is given by statute, and in this
instance it is used to recover a debt founded upon a judgment,
which is clearly not within the words or meaning of the Statute.
Wilkinson on the Act of Lim. 15; 1 Law Lib. 8. Our limitation
is copied from the English statute, and, under it, it has been de-
cided that the Act does not apply to a special action of debt for
money levied by a fieri facias, nor on an award, nor for an escape,
or any case of trust. 4 Watts 177 ; 12 Serg. fy Rawle 59 ; 6 Watts
379; '4 Serg. <$r Rawle 389; Ballentine Lim. 88 ; 2 Mod. 212; 2

Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania [May term 1841 - May term 1845] (Volume 7) → online text (page 41 of 57)