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tence, and a mere continuation of the description of the land
intended to be granted ; that is a further explanation of it, which is
one of the peculiar offices of a recital in deeds, and almost uniformly
the exclusive work of the scrivener, without any regard to the cove-
nants that have been agreed on by the parties and directed to be
inserted. It may be, as Mr. Justice Buller has said in Browning
v. Wright, 2 Bos. & Pul. 27, " often difficult to distinguish between
the words of the conveyancer and those of the party conveyancing;"
but in the present case it appears very plain to me that the whole
of the recital is the project and work of the person who drew the
deed, and that he intended it all as mere description of the land
about to be conveyed. It is obvious, in the first place, that in order
to be precise and definite in the description of the ten acres, the
courses and distances are set out ; and in the next place, to make
its location generally known to and recognised by the neighbors
around, the fifty-eight acres and one hundred perches, and the
former holder of them, are introduced. Because it was perfectly
rational for the scrivener to suppose that as the fifty-eight acres of
land had been possessed and held by John Whitehill, the father, for
several years, as a distinct tract, separated from all the surround-
ing lands, everybody around had got to know that he claimed it,
and all, no doubt, considered it his property. The word " pro-
perty," upon which some stress was laid in the argument, seems,
from the context, not to have been used in any technical sense, but


[Whitehill v. Gotwalt.]

merely to show that the same fifty-eight acres, which was held and
claimed by John Whitehill, the father, in his lifetime, was the same
out of which the ten acres had been struck by courses and distances.
The term property very often means the thing possessed, as well
as the estate or interest which the party possessing it may have in
it. And although it is sufficient where the owner in fee of land
devises all his property in it to pass the fee to the devisee,
yet it would not have that effect in a deed. And although it
is plainly to be inferred from the terms of this recital that it was
thought John Whitehill, the father, was in his lifetime the owner
of the fifty-eight acres in fee, yet it would have been as plainly
inferrible if, instead of the term "property," the word "farm" or
"possession" had been used. Or if, in place of the words "late
the property of," the words "lately owned by," or "lately held
by," or "lately claimed by," had been employed by the scrivener,
the same inference and conclusion must have been drawn. In the
course of reasoning that has been adopted to show that the words
in question amount to a covenant, the intention and understanding
of the parties seem to have been left out of view, and an artificial
interpretation, subversive of. the intention, as well as of the rule
caveat emptor, is substituted, in order to meet the event that is
said to have occurred. Events which have happened since the
making of a deed, or that may have existed before, but were
unknown till afterwards, ought to have no influence in the con-
struction of it. And perhaps it is necessary that we should ever
bear this in mind, lest we should be tempted to make the deed suit
the exigency of the case, instead of what was the original design
and intention of the parties.

Can it be believed for a moment that if the scrivener had been
directed to have inserted a covenant of seisin in this deed, that
he would have given it in the form that this is ? Or if he had
been asked the question, after he had drawn the deed, whether
or not it contained such a covenant, would he not have promptly
answered in the negative ? Or if he had been directed to have
drawn the deed with an express, limited and special warranty of
title, is there the slightest reason to conclude that he would not
have introduced into it the very same clause as part of the descrip-
tion of the land intended to be conveyed? I think but one answer
can be given to these questions. It appears from a report of this
same case, in 16 S. & R. 107, that on a former trial, the scriv-
ener of the deed was introduced as a witness, and proved that
this matter of description and recital was in a measure projected by
himself, and inserted in the deed, when he knew that no such deed
of release as is there mentioned existed. And he proved further,
that when he spoke of this thing to the parties, and told them, as
the grantor said he would obtain the releases in a short time, that

May 1832.] OF PENNSYLVANIA. 329

[Whitehill r. Gotwalt]

he would insert them in the deed as if already obtained, and not a
covenant to procure them. After it was agreed he should do so,
then Christine remarked he must have a warranty of title. This
shows how the fact was, and what to my mind is perfectly clear
from an inspection of the deed itself, that the parties did not mean,
and could not have understood and considered, that the insertion
of all this recital contained amounted to a covenant or warranty of
the title. Because it was after it was mentioned to them by the
scrivener how he would do it, that Christine added that he must
also have a warranty of the title, and accordingly an express cove-
nant of general warranty was inserted, and it does not appear that
any other was spoken of. This express covenant of general war-
ranty, if not sufficient in law to prevent a general covenant of seisin
from being raised by implication, is at least a powerful objection
against the implication of it from words of dubious import, not
amounting to an express covenant, or which otherwise, upon the
rule that words in a grant shall be construed most strongly against
the grantor, might be sufficient to turn the scale against him. To
say that such words as are contained in the recital under consider-
ation, connected with the description of the land intended to be
conveyed, shall amount to a general covenant of seisin, would, in
my mind, go to defeat the intention and design of the parties to
many deeds that have been executed, containing no other express
covenant than that of a special warranty, and where it was intended
that in no event should the grantor be responsible, unless for claims
that should come clearly within the terms of the special warranty ;
for in many cases of express special warranty, the subject of the
grant will be found to be described in a manner and in terms im-
porting a general covenant of seisin as strongly as in the present
case. In the case of Windham v. Windham, Dyer 376, b, more
fully reported in And. 58, the deed of feoffment described the mes-
suage that was the subject of the grant by stating its locality, and
then superadded the words " lately of Richard Cotton," which was
untrue. It had been owned by Thomas Cotton, not Richard ; yet
no one appears to have ever thought it amounted to a covenant, on
the part of the feoflfer, that Richard Cotton had been the owner of
the messuage. It was considered by all merely a part of the descrip-
tion ; and the only question made was, whether it could be so con-
strued as to embrace the messuage in D., of which Thomas Cotton
had been the owner, and it was held that the words " messuage
with the appurtenances in D.," were sufficient of themselves ; and
the words "lately of Richard Cotton," were rejected as sur-
plusage. In conclusion, on this second branch of the case, I
recur to the case in the Year Book, 33 Hen. 6, 20, b, cited
already from Finch's Law 33, where A., reciting that he was
seised in fee of the manor of D., granted a rent out of it to B.

330 SUPREME COURT [Lancaster

[Whitehill v. Gotwalt.]

This shall not estop A. to say that he had nothing in the manor.
This I consider a much stronger case in favor of raising a covenant
of seisin, because it was a recital in express and technical terms
that he, the grantor, was seised in fee, and yet it was held not even
sufficient to operate as an estoppel.

I fully concur in the principle laid down by the late Mr. Justice
Yeates, in the case of Gratz, Lessee, v. Ewalt, 2 Binn. 102, that
" in conveyances of real estate there must always be great danger
in implying anything that is not stipulated in clear and precise
terms. This is the safest way of determining the extent of a
grantor's responsibility." I am, therefore, upon the view I have
taken of this question, decidedly of opinion that this clause in the
deed does not amount to a covenant of seisin ; that it was not so
intended, and that there was error in the charge of the court below
on this point to the jury.

The third question now presents itself for consideration. In the
argument of this cause, the declaration was spoken of by the coun-
sel as containing two counts, and seems to have been treated in the
District Court, on the trial, as if it were so. In truth it contains
only one ; but it is not material whether two or one, for every
clause and part of the deed, which it was supposed might possibly
be construed into a covenant, either expressed or implied, that would
enable the plaintiffs below to get clear of the land, and to recover
back the purchase-money with interest, are set forth in it and
breaches assigned. The court below, in their -charge to the jury
on the express covenant of general warranty, and the breach
thereof set forth in the declaration, laid down the law correctly
enough, when they said that, without an eviction of the vendees,
or a surrender by them of the land to a paramount title, there could
be no breach of this covenant. But still, inasmuch as the court
erred in their charge to the jury on the second question, which
has been already considered, the verdict and judgment of the court
below cannot stand. For agreeably to the charge on the second
question, the jury were clearly bound to give the verdict they did, and
it became altogether unnecessary for them to consider whether there
was an eviction or not. Indeed, I cannot perceive from the pa-
per-book, although it professes to set out the evidence given on the
trial, that there was any attempt to prove an eviction, or that the
plaintiffs below were at any time disturbed in their possession of
the land by the Penns, their heirs, assigns or anybody else. From
the evidence given by the plaintiffs below, and the time at which
they have in their declaration charged the eviction, I have great
doubts whether it be practicable for them to make out a case that
would entitle them to recover for the breach of this covenant of
general warranty. The eviction is stated in the declaration to have
been made on the first day of November eighteen hundred and six-

May 1832.] OF PENNSYLVANIA. 331

[Whitehill v. Gotwalt. 1

teen. But they proved that on the third of April preceding, all the
right and interest which Andrew Gotwalt had in the ten acres of
land and its appurtenances were conveyed to George Christine, who
had been his co-tenant, and also the co-plaintiff in this case in the
court below, by the sheriff of York county, who had sold the same
under judicial process to Christine. Immediately after George
Christine got his deed of conveyance from the sheriff, it may be
supposed, that he got sole and exclusive possession of the whole of
the ten acres ; and if so, it is not easy to imagine how Andrew
Gotwalt could have been evicted afterwards on the first of Novem-
ber eighteen hundred and sixteen, jointly with George Christine.
Besides, Gotwalt, on the third of April preceding, ceased to have
any interest in, or right to the land, and could sustain no injury
whatever by a subsequent eviction of George Christine. Gotwalt
had, in effect, parted with all his interest in the land, and received
the purchase-money, without making himself accountable in any
event, for the goodness of the title. Literally, it was not a sale by
himself, yet, in effect, the sale by the sheriff was the same as if he
had sold to a purchaser, who agreed to run all risk in respect to the
title. If any eviction took place after George Christine became the
sole proprietor under Whitehill's title of the ten acres, he alone, as
it appears to me, can maintain an action for it upon this covenant
of general warranty. It is a covenant which runs with the land
until broken, and Christine, in case an eviction had taken place
after he had become the exclusive claimant of the land under
Whitehill's deed of conveyance, might, as a party to the deed, and
the covenant contained in it, for one moiety, and as assignee in
law of Gotwalt's moiety, have maintained an action in his own
name, and in this way only, for such breach of the covenant of
general warranty.

If there were no eviction anterior to the bringing of this action,
it may reasonably be conjectured from what the plaintiff in error
offered in evidence on the trial of this cause, but was objected to by
the plaintiff's counsel there, and overruled by the court, that none
need be apprehended in future. For from that evidence it would
appear that releases in favor of George Christine and Andrew Got-
walt were obtained from the widow of John Whitehill, the father,
and from his heirs in the course of five or six months after John
M. Whitehill executed his deed, and that during the pendency of
this suit, in August eighteen hundred and twenty-four, a complete
extinguishment of the Penn title in favor of John M. Whitehill's
vendees was procured, so that all ground of complaint set forth in
the declaration has been, it would seem, removed, and the heirs of
George Christine made perfectly secure in their title to the land.
The judgment reversed, and a new venire awarded.

Followed, 8 Smith 485 ; 7 Phila. 641.
Referred to, 2 J. 108 ; 1 Wr. 321.


Eckert et al. against Eckert et al.

To take a case out of the Statute of Frauds and Perjuries, proof must be
given of the parol contract, relied on, having been first made, before the part
performance took place. If possession be taken of land, and improvements
be made on it, and afterwards the owner lay parol sell or give it to the tenant,
such sale or gift will not transfer the title.

Where a party claiming to have land under a parol contract, made after he
came into possession of it, has made improvements and has been fully com-
pensated for them, a specific execution of the contract, it seems, would not be

Where a son is permitted by his father to enter upon the possession of a
part, or the most valuable portion of his father's real estate, and make valu-
able, and permanent improvements, it is not to be referred to the son's having
become the owner of the estate, either by gift or sale from the father, with-
out clear and satisfactory testimony to authorize such conclusion.

In such cases the transaction generally results from the confidence which
exists between the father and son, that the father will provide for the son in
his will, which is perfectly consistent with the father's salutary retention of
the title to the land.

In an ejectment brought by one of several children, after the death of
the father, in which the plainitff claims the land by virtue of an alleged parol
gift or sale, possession taken and improvements made, the will of the father
devising the land from the plaintiff, is evidence, as without it, the plaintiff
might recover as heir-at-law, although he fail to establish such gift or sale.

In such a case where no direct evidence was given of any gift or contract
at the time the son took possession of the land, it is competent for the
defendant to prove, that at the time of such possession taken, the father
suffered the son to take with him almost all his stock, and farming imple-
ments from another farm on which they had resided.

Where no evidence was given that a gift or sale of such stock and farming
implements was made by the father to the son, it is not competent for the
plaintiff, to repel such testimony as that given to prove that he had worked
for his father, after he came of age and the value of his services.

The court are not bound to require a party who offers evidence, to reduce
his offer to writing.

APPEAL from the Circuit Court of Lebanon county, held by his
Honor, Justice HUSTON.

It was an ejectment for a tract of one hundred and seventy-
five acres of land, brought by Margaret Eckert, Polly Eckert
and Louisa Eckert, who were minor children of Peter Eckert, de-
ceased, and sued by their guardians, against George Eckert,
George Boyer and Samuel Fisher. The plaintiffs made title to the
land by an alleged parol contract or sale, made by Philip Eckert,
deceased, to Peter Eckert, his son, accompanied by possession, and

May 1832.] OF PENNSYLA r ANIA. 333

[Eckert et al. . Eckert et al.]

improvements made upon the land. A former ejectment had been
brought against the plaintiffs in this, in which a verdict and judg-
ment was recovered against them, which was taken by appeal from
the Circuit Court, in which it was tried, and affirmed in the
Supreme Court. The opinion of the court in that case is subjoined
in a note to this.

Philip Eckert the father of Peter Eckert had eight children ; he
survived Peter, but died before this suit was brought. The follow-
ing evidence was given in the cause.

Testimony of the plaintiffs.

Christian Bricker. I walked down the road to see a triangular
piece of land ; the old man stood before his house at the road, and
asked me which way I was going. I said I was going to see this
tract of land, I wanted to buy it if I could get a contract. He said
he had nothing to do with it, if I wanted to buy it I must go to
Peter. I went to Peter's house after I saw the land ; when I came
there the old man was there also. Then I tried to make a bargain
with Peter and did not agree. Peter said it was no matter, he
would be down soon and pass my house, and then perhaps we could
make a contract. After some time Peter came into my house on
his way to town then I had bought another tract. This was in
eighteen hundred and twenty-four, in March or April. The old
man when I met him at Peter's house, told me that he had often
told Peter, or advised Peter to sell it ; that if he was in Peter's
place he would sell it, as it was cut off by the canal, it was unhandy.
The old man and I often talked ,of the land. He said Peter wanted
to pay money on the land, and he refused to take it ; he had money
standing out himself, and some he was afraid he would lose, and
therefore he would not take it. He said he had made a will and
Peter need not pay anything until after his death. That he had
given it to him in his will, and he was to pay yearly a certain sum,
the amount witness does not recollect. He said he had given it at
twenty-five hundred pounds, but the canal had done it damage, and
if no damages were recovered his estate would have to pay five
hundred pounds back. This was before I intended to purchase.
He told me more than once how much Peter was to pay yearly.
Have forgotten it. I was at the old man's and worked there after
eighteen hundred and twenty-four. He said the Maces lived on
that land, and that spited him, as they never had paid him for it;
this was after Peter's death. He said he would willingly see the
children have it if one of them was a boy. He had made his last
will, but had now torn it and made another one. I lived half a
mile from Philip eleven years. Peter, as much as I know, built a
house and smoke-house, both of rough stone and granary in the
barn. I do not know that Peter planted any orchard. He made
fences on the land and cleared a patch of the land.

334 SUPREME COURT [Lancaster

[Eckert et al. v. Eckert efc al.]

I do not know that Peter paid the old man rent for the land, the
old man said Peter built a new house. Philip had children, six
daughters, and two sons, George and Peter. Philip said nothing
about Peter having this farm, and his daughters nothing. He
never talked about the children. I was not at Peter's when the
house was building, except on Sundays. Philip said Peter might
build it as he pleased. I do not know who bought and paid for
the timber. Peter hauled it, the old man for a long time before
had no team. I do not know that Peter got the horses and farming
utensils when the old man quit farming. I do know he got the
old man's horses, &c., whether he paid for them I do not know.
The old man made no vendue when he quit farming. I do not
know who owned the personal property. Peter owned some, and
the old man some. The old man lived two miles from this place.
The old man moved away from the old place to the one where he
died two miles from the old place. George lived on the old place
before the old man moved away. The old man had his horses,
stock and farming utensils at the old place ; he had only one horse
after he moved and two cows, and no farming utensils. George
moved from this place in dispute to the old place and Peter to this
now in dispute. Philip said he would give the old place to George
as he could pay for it "better, as he had kept house longer.

George Lose. I and one Joseph Bricker built the house, so
much as I know, for Peter; when I went to make the bargain
Joseph Bricker was with me, the old man was then at Peter's, no
bargain was then made, the old man was once a carpenter. Peter
said he did not understand it. Peter and I and the old man talked
of it. The old man said Peter and I should consider about it. I
came again and Peter and I made a bargain, and I finished the
house. Peter paid me about sixty-five pounds, not sure as to the
exact sum. Some extra, five dollars to put an arch over the front
door. I made a board and John Stoner painted the name of Peter
and wife on it, I have seen it since. The size of the house is forty
feet by thirty-two. I cannot tell where the lumber was got I
went with Peter to Dr. Frener's to buy paint and oil. Peter
bought everything we used; we had nothing to do with the old
man. The old man was often there. I cannot tell that he bought
any materials. The house was built the same spring they began
the canal.

Joseph Bricker. Lose and I built the house. We did not make
a bargain the first time we took it into consideration. Peter said
he did not understand much about buildings, the old man was pre-
sent the first time. Lose made the bargain, and he and I built the
house together. I think we got about sixty-five pounds for our
work, and five dollars extra for the arched door. Peter paid us
our money. The house is forty feet by more than thirty. I think

May 1832.] OF PENNSYLVANIA. 335

[Eckert et al. v. Eckert et al.]

we built the house in eighteen hundred and twenty-two. I know
from the board in the wall. The board states that the house was
built by Peter Eckert and Anna Maria his wife, in eighteen
hundred and twenty-two. Peter bought all the materials, and bought
them as we wanted them. Peter built a bake-oven and a house
over it, and a smoke-house, of stone. I did the carpenter's work
of these houses. He built a granary in the barn before the house
was built. I did the work. This was the first year Peter moved
on this place. The old man nearly joined places with Peter they
lived in sight of each other. After the house was built I was at
work in Peter's barn. The old man came and told me that Peter
had offered him money on the land. He would not take it. The
old man told Peter to put out the money himself. He had money
out himself, and was afraid he would lose some of his own money,
Peter was younger and more able to take care of it or look after it.
Peter told his father he did not know what would happen, how
matters would go about this land. That he had built on the land,
and it might be taken from him. The old man said it was made in
such a way that no person could take it from him. This was not
long after he offered the money to his father. He offered the money
in the spring, and this conversation was before harvest. The old
man told me, Peter had nothing to pay for his land till after his,
the old man's death, and repeated the former reasons for not taking
the money, and that Peter was to pay nothing till after his death.
Peter said take the money and give it to your daughters, they have
more need of it than- 1 have. The old man said no, let them see
how they will come through the world, they had more than he had
when he began housekeeping. The old man did not mention the
sum Peter offered to him. The old man said nothing about what
Peter was to give, or to pay for the land during his, the old man's
life. He did not say Peter was to pay rent, and take the price of

Online LibraryWilliam RawleReports of cases argued and adjudged in the Supreme Court of Pennsylvania (Volume 3) → online text (page 37 of 64)