#### Payne *v.*Echols.

A covenant “ to sell and convey by a deed of warranty,” is satisfied by the delivery, to one of several covenantees, of a deed of special warranty. The grantee holds the title for his associates, the other covenantees.

The admission of parol evidence, therefore, to prove that the parties to the written agreement agreed that it was to be a special warranty, is immaterial, as it was irrelevant and did no harm.

Oct. 1, 1888.

Error, No. 88, Oct. T., 1887, to C. P. Venango Co., to review a judgment on a verdict in favor of the defendant in an action of covenant, by N. H. Payne, against E. W. Echols, at April T., 1883, No. 61. Green, J., absent.

The declaration was not given in the paper books. The pleas were non est factum and covenants performed absque hoc, etc.

At the trial, before Taylor, P. J., the evidence was to the effect that, Echols and Dodd being in possession of a tract of land, Echols entered into a contract with A. G. Egbert, C. E. Taft and N. H. Payne, Oct. 19, 1871, whereby he covenanted “ to sell and convey by deed of warranty, to the-parties of the second part,” his interest.

The defendant offered in evidence the deposition of N. B. Smiley, in which he testified to conversations between-Taft and Echols, at and before the execution of the contract, to this effect: “ Taft wanted Echols to warrant the title; Echols was not willing to do it, he wanted to sell whatever title he had. Echols told Taft how he (Echols) claimed title, and, my recollection is, also, told him that J. L. Hanna claimed to have title to the -land and entered into details as to what he and the other claimant based their claims on. My recollection is that Echols, in speaking of Hanna’s claim, spoke of his claiming under tax title, for one thing, and under a purchase from some one else who had a contract. . . . Echols told Taft that S. C. T. Dodd owned one-third of the property and he (Echols) two-thirds of it; that personally he (Echols) did not believe that Hanna could make good his claim, but said I am no lawyer; Mr. Dodd, who owns a third with me, is and, if he considers it safe and will warrant the title, I will, but I don’t believe he will, . . . I will make the same kind of a deed that he will.”

Plaintiff’s counsel objected to the admission of the deposition *294for the reason that it contained evidence flatly contradicting the written contract upon which suit was brought.

The Court: “ We will admit the testimony, not to contradict the written contract, but to explain it; to explain the meaning of this word ‘ warranty,’ in this contract; and not only to explain that word, but we admit it as explaining matters that took place at the time of entering into this contract. We admit this testimony to explain what took place at the time, and not to contradict it; for really it does not contradict it; in one sense this contract is that they agree to convey and sell by deed of warranty; in my opinion this goes more to show the character of the conveyance than the title that was to be conveyed, .and, to throw light on that question, we will admit the testimony.” Exception.

This was followed by the deposition of S. C. T. Dodd, admitted against objection, in. which he stated that he was interested in the land, and would not make a general warranty deed because the title was in dispute.

The defendant delivered to Egbert a deed for the land containing a covenant of special warranty.

The charge of the court was as follows:

“ The plaintiff, N. H. Payne, brings this action against E. W. Echols to recover purchase-money paid on a certain tract of land situated near this city, and known as the Gurney tract. On Oct. 19, 1871, he entered into a contract, by the terms of which he became the purchaser of the undivided one-third interest in 350 acres of land, in Sandycreek township. He, together with his co-purchasers, entered into possession of the land, and so remained until compelled to vacate the land on account of the failure of their title. He now seeks to recover back this purchase-money on the ground, as claimed by him, that he was to have a good title. After the plaintiff and his co-purchasers were in possession of this land for some time, an action of ejectment was brought by J. L. Hanna, at No. 98 Aug. Term, 1872. On Feb. 12, a notice was served on Mr. Echols to come in and defend the title in that action of ejectment, and he appeared and assisted in the trial of the case. On Nov. 19, 1880, about nine years after this contract was entered into, a verdict was rendered, in that action, for the plaintiff, Hanna, who afterwards took possession of this land in dispute.

“ The plaintiff claims, under this contract given in evidence, he was entitled to a good title to that land; and, upon the face of that contract, he was, and he would be entitled to recover in this action. But the defendant claims that this writing does not express all of the contract. He says that, before this contract was executed, he, the defendant, knew there was an adverse claim to this land; . and, knowing this, he claims he told the plaintiff here, or Taft, who, it seems, did all the business, all about it before this contract of Oct. 19, 1871, was entered into; and claims that Taft got his attorney, Mr. Kinnear, to examine the title, who afterwards refused to certify *295it as being a good title by reason of this adverse claim, and, then, with full knowledge of this adverse claim, they entered into this contract of Oct. 19, 1871, between E. W. Echols, the defendant, of the first part, and A. G. Egbert, C. E. Taft and N. H. Payne of the second part: ‘ The party of the first part, for and in consideration of the sums herein mentioned, agrees, for himself, his heirs and assigns, to sell and convey, by deed of warranty, to the parties of the second part, that certain tract of land, etc.’

“ There appears to be no controversy in regard to this contract except as to the word ‘ warranty.’ [The defendant claims that, after this adverse title was examined, he refused to make a deed of general warranty, that he would make no other title than he had, or as Mr. Dodd would join him in making, and they finally entered into this article of agreement, the defendant alleging here that when they, at the time the agreement was entered into, came to the question of what kind of a title should be conveyed, that it was agreed that the word ‘ warranty ’ should be put in this agreement, and it should not be specified whether general or special warranty, but it should be left to Mr. Dodd, that is, if Mr. Dodd would make a deed of general warranty, then that word ‘ warranty ’ was to be understood as meaning general warranty, and a deed of general warranty was to be executed; but if Mr. Dodd refused to make anything more than a deed of special warranty, then that word was to be construed as meaning a deed of special warranty. You can easily see the difference between a deed of general warranty and a deed of special warranty. The one conveys a good and perfect title, while the other simply conveys what title the grantor may have. In support of this theory, the defendant introduces the testimony of Mr. Smiley, and, if he be correct, the defendant’s theory, so far as that part of the case is concerned, is pretty well sustained, but that is entirely for you. Then we have the deposition of Mr. Dodd, who tells you that he knew of this defect in the title, and he refused to make any other kind of a deed than 'a deed of special warranty. If you believe the defendant’s theory to be correct, that the contract was not all expressed, but the word ‘ warranty ’ was to be used as we have indicated, that the construction to be put on that word by Mr. Dodd would indicate the title to be given, that is, such a deed as Mr. Dodd (who was selling his interest at this same time) would join in making, then, if you believe this is the deed that was tendered, we say to you this deed would be in compliance with such a contract.] [1] On the other hand, if you find the contract was not modified in that way, then we say to you this title is not such a title as the defendant should convey, on the face of that contract, and the plaintiff ought to recover.

“ The defendant alleges, further, that, whether or not the deed was in compliance with the contract, it was accepted by the plaintiff, or by Egbert, Taft and Payne, claiming it was tendered about Feb. 21, that then it was taken to Dr. Egbert’s office, or the office of *296Egbert, Taft and Payne, and tendered to Mr. Egbert, who handed it to Mr. Taft, if we remember right — you remember all the testimony for yourselves. Dr. Egbert says that the deed was put in the safe and there remained for two or three months without anything being done, if you believe Dr. Egbert. The defendant asks you to say, the taking of that deed and keeping it for two or three months after they knew of this adverse claim, if you believe, from the evidence, they did know of it, was an acceptance of the deed, and the plaintiff cannot recover in this case. With reference to that, we say to you that the purchaser would have a reasonable time in which to examine the title. What is a reasonable time? If they knew all about this adverse claim before they entered into this contract, had the title examined by an attorney, and then this deed was tendered to Dr. Egbert and received by Taft, and it was put in the safe and kept there for three months, and this land being of a speculative value, •the price of it liable to fluctuate rapidly, then, in our opinion, the keeping of this deed for that length of time, making no examination of the title, or objections to it, so far as developed by the evidence, would be to our mind very strong persuasive evidence that they accepted that deed, but it is only an item of evidence to be taken-into consideration with all the other facts from which you are to draw your conclusions. The plaintiff swears he knew nothing of this deed until a day or two before it was taken to Mr. Kinnear, and then he promptly rejected it, and also claims the stamps on the deed were not there when it is alleged it was tendered. It is a circumstance to be taken into consideration by you in determining the time when this deed was actually delivered.

“ If you find the contract to be as expressed in this written one, and there was no acceptance of the deed by the plaintiff, your verdict should be for the plaintiff for one-third of the purchase money, with interest.

[“ If you find the contract to be as alleged by the defendant and find the deed was tendered to the plaintiff in a reasonable time, your verdict should be for the defendant;] [2,] or, if you find the plaintiff accepted the deed for a single day, then this action will not lie, as an acceptance of the deed would merge the contract in the deed, and an action upon the covenants in the deed would have to be brought.”

The plaintiff presented, inter alia, the following points :

“ 3. Oral testimony to the effect, in substance, that Mr. Taft agreed, at and before the execution of the written contract declared upon, to accept a worthless title or no title at all, if Mr. Echols had none other to convey, is flatly contradictory of the written contract, and therefore inadmissible, and the jury ought not to consider any such testimony. *Ans.*If the evidence of Mr. Smiley is believed, the inducement for entering into the contract was the construction which was to be placed upon the word warranty, and without which he would not exec.ute the contract; under these circumstances, the *297jury should consider such evidence in arriving at what was the real contract between the parties. [3]

“ 5. One, or even two, of three joint purchasers cannot bind the third by accepting a conveyance of a worthless title, as a fulfillment of a contract for the sale of land, without the knowledge and consent of their fellow purchaser, or previous authority from him, and thereby defeat an action for the breach of such contract. *Arts.*Answered in the negative, with reference to the facts in this case, there being no allegation of fraud or collusion.” [5]

Verdict and judgment for defendant.

*The assignments of error*specified, 1, 2, the portions of the charge in brackets, quoting them; 3, 5, the answers to defendant’s points, quoting the points and answers; and, 4, the action of the court in admitting the' deposition of N. B. Smiley to change and contradict the terms of the written contract, but without quoting the bill of exceptions or evidence.'

*C. Heydrick*and *Carl I. Heydrick,*for the plaintiff in error.—

A vendee has a right not merely to have conveyed to him a good, but an indubitable title. Swayne *v.*Lyon, 67 Pa. 436; Ludwick *v.*Huntzinger, 5 W. & S. 51; Bumberger *v.*Clippinger, 5 W. & S. 311; Colwell *v.*Hamilton, 10 Watts, 413; Speakman *v.*Forepaugh, 44 Pa. 363.

It was error to admit the deposition of N. B. Smiley. The parties having reduced their argument to writing were bound by it, unless in case of fraud, accident or mistake. Hurst *v.*Kirkbride, unreported, cited in Wallace *v.*Baker, 1 Benn. 610; Greenawalt *v.*Kohne, 85 Pa. 369; Martin *v.*Berens, 67 Pa. 459.

Plaintiff’s fifth point raises the question whether Messrs. Taft and Egbert had the power, by reason simply of their being co-purchasers with Payne, to bind him by acceptance of a deed which conveyed nothing, as a fulfillment of a contract to convey land, and thereby defeat an action for a breach of that contract. The language of the point expressly excludes every other kind of authority than such, if any, as springs from the relation of co-purchasers. We are consequently concerned only to inquire what the nature of that relation is. Supposing, then, that Echols had owned the land, the contract vested an estate in each of the purchasers; they becamé tenants in common. As such, their interests were so • distinct that, if they had joined in making a lease, it would be regarded as a demise by each of his own part, 1 Washburn on Real Property, 656, and as the several act of each; the declarations of one would have been inadmissible to affect the title of either of the others. Pier *v.*Duff, 63 Pa. 59. Clearly, one could not convey the interests of the others. And if one tenant in common of such an estate can not convey his co-tenant’s interest, surely he cannot defeat it by any other means, such, for example, as accepting, in satisfaction of the executory contract by which the interest was vested, an instrument which conveys *298nothing, or a less estate. Neither, upon the authority cited, can he defeat it by any declarations. But why shall the vendor who owns not the land, which he contracted to convey, be in a better position than one who is able to make title, and why shall the authority of the co-purchaser over his fellow’s rights be greater when it turns out that one or both of them have been deceived or cheated? This cannot be.

*James D. Hancock,*with him *Mackey & Forbes,*for the defendant in error.

The implied covenant contained in the words “ sell and convey ” is a covenant of special warranty. Act of 1715, § 6; Gratz *v.*Ewalt, 2 Bin. 98; Funk *v.*Voneida, 11 S. & R. in; Whitehill *v.*Gotwalt, 3 Pa. 323; Seitzinger *v.*Weaver, 1 Rawle, 377; Cadwallader *v.*Tryon, 37 Pa. 318 ; Lighty *v.*Shorb, 3 P. & W. 452; Hart *v.*Porter, 3 S. & R. 203; Beidelnian *v.*Foulk, 3 Watts, 308; Rawle on Covenants for Title, 340.

If it should be claimed, however, that the Act of 1713 included only deeds intended to be recorded, the answer to the objection is manifest, that the agreement in question contemplated an ordinary deed for the conveyance of land covered by the recording Acts, and, unless the same construction be given to it, we have the anomaly of the agreement containing a higher warranty than the deed which it covenanted to make. This construction is not tenable. Seitzinger *v.*Weaver, 1 Rawle, 377; Cadwalader *v.*Tryon, 37 Pa. 318; Espy *v.*Anderson, 14 Pa. 308; Withers *v.*Baird, 7 Watts, 229.

We are aware that there are a number of cases, including those cited by the plaintiff, which hold that, under an unexecuted article of agreement, the vendee cannot be compelled to pay his money and take a doubtful title; but they were all decided either in equity, or under the equitable jurisdiction of the court, and easily distinguished in principle from the present case. In Swyane *v.*Lyon, 67 Pa. 436; Speak-man *v.*Forepaugh, 44 Pa. 371; Colwell *v.*Hamilton, 10 Watts, 413, it will be noted that the vendor was endeavoring to obtain performance of the contract by the vendee. Nor was there full performance of the contract by the vendee. Nor did the vendee sue for the money paid on an agreement for land of the doubtful character of which, at the time, he knew and took the risk. In the action of covenant, likewise, the plaintiff and defendant stand in very different places. The former must make out his case and prove breaches of the covenant under strict rules of law. The defendant, under proper pleas, can make an equitable defence, to prevent a multiplicity of actions.

In Cadwalader *v.*Tryon, 37 Pa. 322, the court say: If the defendant knew of the defect of the plaintiffs title, in the particular alleged and proved, before he bought, and required no covenant against it, and there was no fraud, he cannot detain any portion of the purchase-money. To the same effect also are Lighty *v.*Shorb, 3 P. & W. 452; Hart *v.*Porter, 5 S. & R. 205 ; Beidelman *v.*Foulk, 5 Watts, 308; *299Speakman *v.*Forepaugh, 44 Pa. 363 ; McClure *v.*McClure, 11 Pa. 477, with a multitude of authorities from other states, including Hill *v.*Hobart, 16 Me. 164; Clutezc Robison, 2 Johns. 595 ; Aiken *v.*Sanford, 5 Mass. 494; Tinney *v.*Ashley, 15 Pick. 546.

Oct. 1, 1889.

Indeed, a multitude of decisions of this court go much further than allowed by the court below in this case; and hold that clear and precise parol testimony of what occurred at the execution of a written instrument is always admissible to explain, and even to vary, contradict and avoid it when it is proved that but for the oral stipulations it would not have been executed. Hoopes *v.*Beale, 7 W. N. C. 337; Greenawalt *v.*Kohne, 85 Pa. 369; Whitney *v.*Ship-pen, 89. Pa. 22; Keough *v.*Leslie, 92 Pa. 424 ; Building Association *v.*Hetzel, 103 Pa. 507.

The deed called for by the contract was made and delivered. Even without such deed, the contract was performed by the payment of the money and the acceptance of possession under the contract, and the title was completely vested in the plaintiff. Seitzinger *v.*Weaver, 1 Rawle, 377. And as to the deed, so far as Echols was concerned, the delivery was complete when it passed from his hands for the use of the grantees. Eckman *v.*Eckman, 55 Pa. 269; Arthurs *v.*Bascom, 28 Leg. Int. 284.

Per Curiam,

The contract, which forms the foundation of this suit, having been fully executed, by the payment of the purchase-money on the one part, and by the execution and delivery of the deed on the other, it is clear that no action can be maintained upon it. Echo.ls covenanted “ to sell and convey by a deed of warranty,” and that covenant was fulfilled by the delivery of a deed of special warranty. Such being the case, a delivery to one of the co-tenants or co-contractors would be a delivery for all, for, by that act, it passed from the possession and power of the grantor, and, when it was received by Egbert, he necessarily received it, not only for himself, but also for his associates. It is true, had the deed not been such as the covenants of the articles of agreement required, the receipt of it by Egbert would not have bound the others; but, as it did accord with those covenants, the delivery was perfect.

The exception to the evidence comes to nothing, because the admission of the evidence complained of did the plaintiff no harm, and the defendant no good. Had there been a question of fraud or mistake, it would have been relevant. As the case stood, however, when it went to the jury, it was simply irrelevant, in that the defendant’s case was complete without it.

The judgment is affirmed.