#### *James and Richard Cathcart v. Mason Chandler.*

Defendant was the tenant of .the plaintiffs’ intestate., for .the year 1849. The premises were sold in feein Nov. 1849. Proclamation .was made at the opening of the sale, (which embraced various tracts of Land) that possession would not be delivered until the ensuing January. The circuit Judge concluded from the testimony, that this proclamation was not heard b,y. defendant. Defendant bought at the sale the premises he tiren occupied as tenant, and received from the Commissioner in Equitya deed of release, in which only one reservation was made, to wit: the right of way to a Rail-road company. This action by *sum. pro.*was brought to recover the rent accruing from the time of sale, that for the foregoing part of the year having been paid; *Held,*that defendant Was not liable; that he could not be bound by a stipulation announced, but not heard by him ; that the legal effect of the deed excluded the claim for-rent; that the stipulation, if assented to, was verbal, and could not be added to the terms of the deed upon the geneial rule of evidence.

*Before*Evans, J. *at Fairfield, Spring Term,*1850.

This was a *sum', pro.*to recover a balance due for house rent. The facts were these. The defendant was the tenant of a house belonging to the estate of Robert Catheart, by lease in'writing, under seal, at the- annual rent of $200 per annum. The plaintiffs were the administrators of R. Cath-eart, -and had filed a bill in -the Court of Equity, for the sale of the real éstate. Ry the decree of the court, a sale was made on the first Monday in November, 1849. At that sale, Chandler purchased the house of which he was tenant, and the Commissioner made him a deed, in which a right of way through, the lot is reserved for the Rail road, and nothing else.

*20It was proved that after the Commissioner had stated the terms, he gave notice that the right of way had been ceded ' to the Railroad, and that possession was not to be given until the first of January. This was no part of the terms as set out in the advertisement of sale, or those announced by the Commissioner; and the Commissioner (McCants)‘did ■not recollect' that he had heard such an announcement. This notice was given at the commencement of the sale.. There were a great many houses and tracts of land sold before the house bought by Chandler. He was not .present at the announcement, and there was no proof that he knew of the reservation. The defendant paid up the rent to the time of the sale, and this action was for that which was alleged to have accrued afterwards. His Honor was of opinion, 1. That the deed was the evidence of the contract, and that parol evidence could not control it by interpolating another conditiop, in addition to the reservation of the right of way. 2. That this addition to the térms, as advertised, was not binding on the. defendant without nolice, and the proof was very clear that he was not present when the notice was given. He therefore decreed for the defendant.

The plaintiffs moved the Court of Appeals to reverse the decree of his Honor, on the ground,

That notice of the reservation being publicly announced at the commencement of the sale, and before any property was sold, was sufficient to bind the defendant, whether present or not.

*M’Dowell Boylston,*for the motion.

*Hammond*cj- *Buchanan,*contra.

*Curia,*per Withers. J.

In the case of *M'Lean*v. *Executors of Green,*the question turned .Upon the inquiry whether M’Leari was in fact apprised of the refusal of the defendants-in that case, to warrant the soundness of the negro he bought. It did not appear that the terms of the sale were in writing or in print. They were announced by the auctioneer at the opening of the transaction. A bill of sale was accepted by the plaintiff, warranting the title, but omitting everything as to soundness. In this state of affairs, the court held, by a majority, that the purchaser, M’L'ean, was acquainted with t.he condition, that the executors of Green declined to warrant soundness, as to each negro sold. If the evidence, being by parol,-and relating -to the condition of a contract, stipulated verbally and before it was reduced to writing, had been inadmissible, on the principle that such evidence is not receivable to vary, by addition, • subtraction or otherwise, a written contract, perhaps something might be gleaned from that case for use in this; But that rule of evidence was not involved in the case cited; for a warranty of *21soundness is held as an implication not to be inconsistent with, or contradictory to, an *express*warranty of title. sides, in the present case, Chandler cannot be bound by actual notice that the plaintiffs weie not to deliver possession of the premises until the 1st January next, following the time of sale, because the fact was resolved otherwise, to wit: that Chandler did not have knowledge of that condition of the sale. Of course it is understood, that such a resolution of the Judge presiding in the summarry process jurisdiction upon the fact, is equivalent to the like finding by a jury. This would be enough, perhaps, to settle the case, for unless the defendant assented to the'condition of the contract, insisted upon here by the plaintiffs, which necessarily implies knowledge of their announcement of it, lie surely cannot be bound by such an -obligation.

But if he had notice, there is another ground upon which the decision on circuit may well rest; that the deed of conveyance specifying one reservation, and being entirely silent as to the postponement of possession, excludes any verbal stipulation to that effect, upon the principle of the law of evidence already adverted to. That such extrinsic evidence would add a material condition or reservation to the legal operation of the otherwise unambiguous terms of this deed of release, is too plain to,require argument or authority to support it. Whoever may be curious to examine abundant illustration of this point, will find it in the cases collected in note 961, p. 1428, of 3d Phillips on Evidence, by Cowan and Hill

The motion is dismissed.

Evans, Wardlaw and Frost, JJ. concurred.

*Motion refused.*