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brances ; but if the incumbrance be removed after suit brought, the vendor may re-
cover, but must pay costs up to the time when the incumbrance was removed, and
notice of it to the purchaser.

If a deed be altered after delivery, the alteration destroys the deed as to the party
who altered it, but "does not destroy the estate. If it contain covenants, the party
loses all remedy on them, but the title is not divested. It is the instrument which
is rendered void, not the estate.

ERROR to the district court of Lancaster county.

This was an action of debt on a bond, dated 1st April 1820,
brought in the name of John Fullmer, assignee of George Withers,
against Ezekiel Atkinson, and the defence was a failure of considera-
tion. The defendant called Isaac Bolton, as a witness to prove what
William and Mahlon Atkinson, who were then both dead, swore be-
fore arbitrators on a former trial of the cause ; who said, that he could
remember the whole substance of the testimony then given by those
witnesses, which was, that they were subscribing witnesses to the
bond ; that the parties said it was for the land sold by Withers to
Atkinson ; that at the time the bond was given Withers declared that
there was no judgment against the land. Upon cross examination
the witness said, that his memory was refreshed on the subject of
what the Atkinsons had sworn before the arbitrators, by having fre-
quently since seen the notes of their evidence, as taken at the time
by George W. Jacobs, Esq. the counsel of the defendant. The plain-
tiff then proposed to ask the witness, whether he had not heard
George W. Jacobs, Esq. admit in court, when examined as a witness,
that the only notes he had were memoranda of what he expected to
prove, and which were here made in his own office. The defendant
having objected to this evidence on the ground that Mr Jacobs was
alive and competent to testify, it was rejected by the court, which
formed the subject of the first bill of exceptions.

The defendant having given in evidence the bond, dated 1st April
1 820, and the agreement between the parties for the purchase and
sale of the land, dated 13lh August 1818 ; with four receipts of dif-
ferent dates for payments on account of the purchase money, and



Nov. 1832.] OF PENNSYLVANIA. 237

[Withers v. Atkinson.]

proof that Atkinson had gone into possession of the land in November
1818 ; offered in evidence a deed from Withers to Atkinson, purport-
ing to bear date the 1st of November 1818, and proof by the justice
who drew the same and took the acknowledgement of the grantors
and their wives, that it was drawn, executed and acknowledged in
the year 1819, and that "nineteen" had been erased and eighteen
written upon the erasure, since the deed was executed and acknow-
ledged. This evidence was also objected to, and the objection was
overruled and the evidence given. It was also proved that the wives
of John Withers and George Withers, both of whom were grantors,
were yet living.

The defendant then gave in evidence fifteen judgments against
John and George ^Withers, all entered previously to 1819, but all of
which were satisfied before the trial of the- cause, and some of them
after its institution. It was also in proof that Atkinson had sold and
conveyed a part of the land in 1822. These facts gave rise to seve-
ral points which were made by the plaintiff and defendant, upon
which they respectively asked the court to charge the jury.

The plaintiff requested the court to charge the jury :

1. That the date of the deed and its acknowledgement given by the
Withers to Atkinson is not material ; it takes its effect from delivery. If
a deed of conveyance has a false or impossible date, or no date at all,
it is nevertheless a good deed. If, therefore, the date of this deed
was altered before delivery, it is still a perfectly good deed to Atkin-
son against the grantors ; and if the deed has been altered by Atkin-
son, or with his consent, since he received it, or before he received it,
he has no right to complain.

2. That the deed for the land which defendant has in possession,
admitted by defendant to have been received by him on the 1st of
April 1820, and kept, and the land held under it by him, (except the
part he has sold) ever since, is the fulfilment and completion of the
agreement of the 13th of August 1818, as to the conveyance of the
land ; and that the covenants in the article of agreement are carried
into effect and merged in the deed, and cannot now operate to con-
trol or interpret it.

3. The defendant having been in possession and enjoyment of the
land from 1818 up to this time, having received a deed for the land,
having given the bond in suit for the balance of the purchase money
on the 1st of April 1820, and having recorded that deed on the 12th
of December 1821, and having sold a part of this land by deed, on
the 15th of April 1822, cannot now object. to the payment of the
bond ; because, he alleges, there were levies, by awards or judg-
ments, at the time the deed was given, which remained undischarged
or not removed at the time suit was brought, if they have been re-
moved since.

4. That no liens or incumbrances now remain on this land.

5. That the transactions between men are taken to be fair, and
done according to their mutual understanding, unless shown to be



238 SUPREME COURT [Lancaster,

[Withers v. Atkinson.]

otherwise ; that fraud is not to be presumed or believed by a jury,
without satisfactory proof.

6. That a defendant asking for equity, as a defence against a legal
claim, must do equity ; that it is inequitable in a defendant to ask to
be relieved from the payment of his bond for purchase money of land
which he had held and enjoyed under his deed for ten years and
a half, up to this time, without being disturbed, or even asking for
further assurance, or other indemnity under the covenants in his deed,
merely on account of incumbrances of records which once existed
against the lands of the grantors, but which are now and have long
since been removed.

7. That the defendant, by his sale by deed recorded on the 15th
of April 1822, of fifty-three acres of this land, to his son, has shown
by a conclusive act that he did not intend to rescind the contract,
and has put it out of his power to replace the grantors in the situa-
tion in which they were before the sale.

To which the court answered :

1. A deed takes effect from the delivery. The alteration of the
date of this deed, and acknowledgement after the execution of them,
if done by the grantor, or at his instance, is a falsification of the deed
in a material part. If a deed of conveyance has a false date, or no
date, it is, notwithstanding, good. If the date was altered by Atkin-
son, or with his knowledge and consent, he cannot complain.

2. Answered in the affirmative.

3. Answered in the affirmative.

4. If the jury believe that the judgments Nos. 2 and 13 were re-
leased, there are now no incumbrances.

5. Answered in the affirmative.

6. Answered in the affirmative.

7. This is for the jury. It is evidence ; and, whether conclusive
or otherwise, is for them to decide.

The defendant requested the court to charge the jury:

1. That as it is in express proof, that the bond upon which this
suit is brought, was given for part of the purchase money of a tract
of land, covenanted to be conveyed by George Withers fy Co. to the
defendant, clear of all incumbrances, except only the claim of the
commonwealth, it is incumbent on the plaintiff before he can recover,
to show that when he brought his suit he was in a situation to com-
ply with the contract on his part, and convey the land to the defend-
ant clear of all incumbrance?, agreeably to the terms of the articles
of agreement executed on the 13th August 1818.

2. That a vendor is bound to acquaint a purchaser with the incum-
brances existing against the estate intended to be sold ; and if he
neglect to do so, he is guilty of a direct fraud, which vitiates and
renders void the contract.

3. That where there has been direct fraud, or the adverse party
has acted mala fide, the contract is void, and cannot be confirmed by
any subsequent declarations or acts by which its fairness is acknow-



JMw. 1832.] OF PENNSYLVANIA. 239

[Withers v. Atkinson.]

ledged. Therefore, if the jury believe that George Withers, the plain-
tiff, did not, at the time of obtaining the bond upon which this suit
is brought, acquaint the defendant with the incumbrances existing
against the land sold, and induced him to execute the bond and ac-
cept the deed, by falsely and fraudulently representing that the land
was cleared of incumbrances; that there was not a judgment against
him under the canopy of heaven; and that the deed was good: that
this, ipso facto, avoids the bond, and that the subsequent recording
of the deed can have no effect in reviving or confirming it.

4. That it is a principle of equity, that the parties to an agree-
ment must be acquainted with the extent of their rights, and the
nature of the information they can call for respecting them, or
they will not be bound. And, therefore, if the jury believe, that
on the 1st day of April 1820, the day on which the defendant exe-
cuted this bond, he was not acquainted with the existence of the
incumbrances against the estate he had bought, and was lulled into
security, and prevented from making inquiry, by the false and frau-
dulent representations of the plaintiff George Withers, he is not bound
by his contract, and the bond is void.

5. That it is a salutary rule, founded on morality and good policy,
and which recommends itself to the good sense of every one, that
no man ought to be heard in a court of justice, who seeks to enforce
a contract founded in, or arising out of, moral or political turpitude,
and if, therefore, the jury believe that the plaintiff, George Withers,
obtained from the defendant the bond in suit, by the assertion of wil-
ful and deliberate falsehoods, and by palming upon him an erased
and altered deed, their verdict should be in favour of the defendant.

6. That an interlineation, if made after the execution of a deed,
will avoid it, though in an immaterial part ; the parties having no
right to make the most trifling alteration after it has been acknow-
ledged before a magistrate, appointed by law to take and certify the
acknowledgement, in order that the deed may be recorded; and as it
is in express proof, that after the acknowledgement by the grantors
and their wives, before James Black, Esq. the erasures and interlinea-
tions in the deed, and the acknowledgement spoken of by him were
made by George Withers the plaintiff, or through his instrumentality,
that this avoids the deed in toto, and as the bond was given for land
conveyed by the deed, the consideration of the bond has failed, and
the money cannot be recovered.

7. That the rights of femes covert can be divested only in the man-
ner pointed out by the laws of the land, and as it has been proved
by James Black, Esq., the justice before whom the deed given in
evidence by the defendant was acknowledged, Elizabeth and Mary
H. Withers, the wives of two of the grantors, are still in full life ;
that subsequently to its acknowledgement, the deed was altered and
erased by George Withers, or some one for him : this vitiates the con-
veyance as to them. And that as Ezekiel Atkinson holds the land
subject to their rights, no indefeasible title clear of all incumbrances



240 SUPREME COURT [Lancaster,

[Withers v. Atkinson.]

has been given to him, agreeably to the articles of agreement of 13th
of August 1818; and that consequently the consideration of the
bond has failed and the plaintiff cannot recover.

8. That as it has been fully proved, that^subsequently to the exe-
cution and. acknowledgement of the deed given in evidence by the
defendant, it was materially altered and erased by the plaintiff
George Withers or his agent ; this avoids the deed as to the other
grantors ; and, consequently, that Ezekiel Atkinson, in case of eviction,
could have no redress against them upon the covenant of warranty
contained in the deed.

9. That as the interlineations and erasures made in the deed by
George Withers or his agent, subsequently to its execution and ac-
knowledgement before James Black, Esq., avoid it as to the other
grantors; their legal estate has never been divested, but remains sub-
ject to all liens and incumbrances existing against them.

10. That fraud vitiates every transaction; and if the jury believe
that the defendant was induced, on the 1st of April 1820, to give
his bond by the false and fraudulent representations of the plaintiff,
respecting the non existence and removal of the judgments against
the land, and the goodness of the deed brought to his house by
George Withers, and was ignorant of the alterations and erasures in
it, or of the effect of them in avoiding the deed as to the other grant-
ors, that this avoids the contract and the money cannot be recovered.

Answer to the defendant's points:

1. The consideration of the bond is the deed of conveyance of the
1st of November 1818, and if at the time of trial all incumbrances
are removed from the land conveyed, the plaintiff has a right to re-
cover. The defendant relies upon equity in resistance of the pay-
ment of the bond, and if he has sustained no injury from incum-
brances, and now can sustain none, because they are removed, his
defence on this point fails.

2. Answered in the affirmative.

3. If the jury find the facts as stated in this point, the legal con-
sequences follow, that the bond is avoided, and the mere recording
of the deed will not revive or confirm it.

4. If the jury find the facts as stated in this point, and that the
defendant was prevented from making inquiries, by false and fraudu-
lent representations of the plaintiff Withers, the bond is void.

5. If the jury find the facts as stated in this point, the deed is void.

6. If the jury find the facts as stated in this point, the law is as
stated therein ; but if Atkinson knew of the alterations and erasures
in the deed and acknowledgement, and waived making any objec-
tion to them, and accepted and recorded the deed, he cannot now
set up as a defence those objections to the deed which he volunta-
rily relinquished.

7. An act of assembly establishes a method by which femes covert
may convey their estates, or any interest which they have in land,
and which, if correctly pursued, effectually conveys the estate or



JVo. 1832.] OF PENNSYLVANIA. U\

[Withers v. Atkinson.]

interest of the wife. The signing and sealing and delivery of a deed,
by a married woman, does not convey her interest, nor bar her dower,
unless she has been separately examined by a magistrate, and a cer-
tificate made by him that the requisites of law had been complied
with ; this certificate, appended to the deed, is the most operative
part of the conveyance as relates to the married woman ; it is indis-
pensable to the transfer of her interest and estate. The date of this
certificate and acknowledgement was a material component part
thereof, and if you believe the date inserted by the justice was erased
from the acknowledgement, and another date inserted by George
Withers, or any one at his instance, the acknowledgement is falsi-
fied and avoided, and the premises conveyed by the grantors is liable
to the dower of their wives in the hands of Jltkinson the grantee.

8. If the jury are of opinion, from the evidence, that the deed was
altered in the date, after the delivery of it, by John and Michael
Withers, two of the grantors, this avoids the deed as to them, and
Atkinson's remedy on the warranty, in case of eviction, is gone.

9. Answered in the affirmative.

10. Answered in the affirmative.

The jury under this direction found a verdict for the defendant,
upon which judgment was rendered. The errors assigned here were
to the opinion of the court as contained in bills of exception, and in
their answers to defendant's points.

Jenkins, for plaintiff in error.

The case presented is that of one who purchased land by articles
of agreement, gave his bonds for the purchase money, went into
possession, received his deed of conveyance, held that possession, and
enjoyed the profits of the land for ten years, during which time he
sold and conveyed a part of it, and now sets up as a defence to the
payment of his bond, that an erasure and alteration were made by the
vendor of the date of the deed, subsequently to its execution ; and
that judgments existed against the land at the time of the sale and
delivery of the deed, although it is not pretended that he has 'been:
prejudiced to the amount of one farthing, and although those judg-
ments were actually paid and satisfied at the very time the defence
was making on the trial of the cause ; and all this without offering
or, indeed, having it in his power, to reconvey to the vendor, or place
him in the situation he was. If this be an equitable defence, and
sustainable only, in any case, upon the principle that he who seeks
equity must do equity, assuredly it cannot prevail here.

Where a contract is executed, even in a case where fraud was
practised by one of the parties, equity will not relieve unless the par-
ties be restored to their original situation. 1 Mad. Cha. 330; Sugd.
Fend. 480.

The court erred in their instruction to the jury, that it is the duty
of a vendee to inform a vendor of the existence of judgments against
him. The concealment of a fact, which any man of common sense

2F



212 SUPREME COURT [Lane

[Withers v. Atkinson.]

can discover for himself, is not a fraud ; for it is the duty of a vendee
to inquire for incumbrances where they may be found, if they exist.
Sugd. Vend. 314, 308 ; 2 Rawle 90; 11 Serg. fy Rawle 246.

The vendee made no objection to the deed until he was sued for
the purchase money, but accepted the same, and held undisturbed
possession under it for several years, without any notice to the ven-
dor of a defect in it, or of his having any reason to be dissatisfied with
it. This was an execution of the contract, and the agreement be-
tween the parties should not have been received in evidence. Cook
v. Cassel, 8 Serg. fy Rawle 268.

The question proposed to the witness, as contained in the bill of
exceptions, was to test his credibility and accuracy ; his memory
was refreshed by certain notes of evidence ; was it not very important
to show, by the same witness, that he was informed from him who
made the alleged notes, that they were not notes of evidence at all 1
JVorrw's Peake 269.

Montgomery, for defendant in error ; who was requested by the
court to confine himself to the effect of the incumbrances, and the
representations of the vendor on that subject.

The articles of agreement between the parties expressly stipulated,
that a title should be made clear of all incumbrances ; and the proof
in addition to this is, that the vendor, upon being inquired of by the
vendee, declared that there was " not a judgment against him under
the canopy of heaven ;" when in fact judgments existed to the
amount of 14,000 dollars against him. This was false and fraudu-
lent. A purchaser has a right to call for information from a vendor;
Perkins v. Gray, 3 Serg. fy Rawle 327 ; and if given to him falsely,
it is fraudulent ; the mere concealment of it, where the purchaser had
other means of information, may not be so. He is lulled into secu-
rity, and prevented from inquiry by false representations. Duncan
v. M'Culloch, 4 Serg. <$ Rawle 483; Cook v. Grant, 16 Serg. <$
Rawle 210; Arnot v. Griscomb, I Ves. 95; 2 Page's Cha. Rep. 390;
2 Kent's Com. 482.

The deed which the vendor palmed upon the purchaser was false,
forged and fraudulent, and was not therefore an execution of the
contract. Upon every principle therefore, this cause depended upon
its merits, regardless of the deed, and should have been tried upon
the rights of the parties, and the facts as they existed when the suit
was instituted.

A witness can not be cross-examined as to an immaterial fact for
the purpose of discrediting or contradicting him. Buckley v. Ell-
maker, 16 Serg. fy Rawle 72.

The opinion of the Court was delivered by

HUSTON, J. I shall content myself with noticing those matters
in this long record which are material to the cause trying. The
first bill of exceptions contains matter which, if doubtful, ought not



Nov. 1832.] OF PENNSYLVANIA. 243

[Withers v. Atkinson.]

to continue so. The witness was called to prove what two persons,
now dead, swore before arbitrators in this cause at some time before
1825 1826, when the last of them died. There had been a for-
mer trial of this case in December 1828, at which the same witness
had been called to prove the same matters in substance ; viz. that
these two persons had sworn, that at the time their father accepted the
deed and gave the bond in question to Withers, he, Withers, had said
there was not a judgment against him under the canopy of Heaven.

The witness at this trial was admitted, upon his swearing that he
could remember all that the deceased witnesses had sworn. After
his examination in chief, he, on his cross-examination, said, " I do
not remember that, at a former trial, I testified, as now, on there being
no judgments against Withers ; but I remember now they did testify
that before the arbitrators." After some more questions, to which
he answered, he did not remember what any other witness than the
two deceased swore, he said, " the reason why I remember what
the Atkinsons swore and not the others, they were my neighbours,
and frequently heard them mention it over since. The matter which
principally strengthened my memory since is George Jacobs's notes,
which I have seen frequently since ;" and again, says, he saw Jacobs
taking notes at the arbitration, and believes Jacobs took notes of all
the evidence, &c. ; that he saw those notes in Jacobs's office. The
plaintiff then offered to ask the witness, Did you hear George Jacobs
admit in court, when examined as a witness, that the only notes he
had, were memoranda of what he expected to prove, made by him
before the arbitration 1 The defendant objected ; the court overruled
the question, and exception taken ; and this decision is attempted to
be supported by saying G. Jacobs was alive and could have been
sent for and examined. Most clearly the question should have been
put. Mr Jacobs, or somebody else, had shown those notes to the wit-
ness, who had frequently read them, and impressed their contents on
his memory, under a belief that those were notes of what the wit-
nesses swore before the arbitrators, taken down at the time of swear-
ing; but if Mr Jacobs had afterwards said much more, if he swore at
the former trial of this cause that he had no notes of what witnesses
swore before arbitrators, it would show that the witness had been
shown as notes of testimony, writings which were no such thing ;
and if he did hear Mr Jacobs swear in 1828 that he had no notes, it
is strange that he did not recollect it, when something purporting to
be notes of the evidence was shown him, and more strange, that he
would persist in calling them what he heard Mr Jacobs swear they
were not.

But as the cause goes back, it is important that an opinion on the
whole subject should be given. It is not, as a general rule, true,
that a man called to testify what witnesses, sworn at a former trial,
said, can refresh his memory by what a third person, or the witness
himself, has since told him was sworn. He is called to testify, and can
only be admitted to testify, what was said on oath in court ; he can



244 SUPREME COURT [Lancaster,

[Withers v. Atkinson.]

not substitute for this what has since been said by the same person
when not under oath, or said by any other person not under oath.
The witnesses were dead before the former trial in 1828 ; he could
have no conversations with them since their death, and his memory
was not refreshed by any such means, he therefore says, his memory
was principally refreshed by Mr Jacobs's notes, which he has seen fre-
quently since. This is worse than the other. A witness cannot be
permitted to refresh his memory by notes or memoranda made by any
other person than himself, except perhaps in a case, where he looked
over the writer, and saw at the time that what was written was writ-
ten correctly ; or where he, immediately after it was written, read it
over and found it correct ; and where he can positively swear, that the
paper to which he refers to refresh his memory is the very one he saw



Online LibraryPennsylvania. Supreme CourtReports of cases argued and determined in the Supreme court of Pennsylvania (Volume 1) → online text (page 29 of 68)