Merriman's Execrs. v. Bush

Opinion, Mr. Justice Clark : The contract upon which this suit was brought is in writing and under seal; it is not pretended that anything was omitted from it, either through fraud or mistake, which the parties or either of them intended to have in it; the agreement is admittedly in all respects just what it was meant to be. The action is covenant, and is therefore in affirmance of the contract. The plaintiff, having offered the contract in evidence, proposed to prove by parol that, although the defendants absolutely refused to guarantee the location of the land, and nego [288] tiations were broken off until this requirement was dispensed with, the lines of the respective tracts had been by the defendants pointed out to them on the ground, and the contract had been entered into, relying upon the designation of the lines so made ; that the agreement, and also the notes and checks for the purchase money, had been deposited in escrow, to be delivered when the lines were so pointed out, and that the contract was not to take effect and did not take effect until this was done. It is conceded that the Waters and the Rugg tracts, and the only contention arises out of these, have been regularly located by actual survey on the ground; but the offer rvas to prove that they are not located upon the ground designated, and that in consequence of the superior title of adverse claimants, the plaintiffs were prevented from taking the timber which was pointed out to them and which they supposed they Avere buying. This offer was objected to on the ground substantially, that the action being covenant and in affirmance of the contract, it was not proper to receive evidence in enlargement of the instrument upon which the suit was brought; that the action is necessarily founded upon the covenant as sealed by the parties; and, as there is nothing on the face of the agreement that is ambiguous or requiring explanation, and nothing was omitted, either through artifice or accident, the covenants contained in the contract cannot be affected by parol proofs. The plaintiffs’ contention, however, is that there is nothing in the offer to contradict, vary or enlarge the terms of the agreement; that if the parties went upon the ground and pointed out the lines, saying : “ This is the John Rugg, and this the Robert Waters,” the covenant will cover lands thus designated; that the eAddence offered was mere identification of the subject matter of the contract, that and no more. It is plain that the only breach that can be set up as a basis of recovery, must be the breach of some covenant contained in” the written contract. Referring to the writing, we find a covenant of title in the following form : “ Said parties of the first part hereby covenant and agree that they are the legal and equitable owners of the twelve tracts of land above described.” It is upon an alleged breach of this covenant that the plaintiffs base their claim in this case ; but they contend that the cov [289] enant, as written, must be applied to the John Rugg and to the Robert Waters tracts, where they were shown to be, according to the understanding of the parties at the time, irrespective of their actual location on the ground; .and that the covenant is broken if it be made to appear that the territory pointed out on the ground as the Rugg and the Waters tracts, was not owned by the defendants. In the pleadings, therefore, the plaintiffs aver as a breach of the covenant, not that the defendants, at the time of the making of said agreement, were not the legal and equitable owners of the lands as described in the contract; but that they were not the legal and equitable owners of the lands, “ as the same were designated and pointed out upon the ground,” etc.'; which lands are admittedly other and distinct from those described in the contract. The argument of counsel in support of these propositions is certainly plausible and has been most ingeniously presented ; but we think it is more specious than sound. It seems very clear that by the exact terms of the agreement, the specific lands which were purchased by the plaintiffs, were the twelve tracts described in the written agreement by the warrantee names ; it is as clear that this description covered the territory embraced within the lines of the official surveys upon which the warrants were located, no more and no less. Now,"if by the offer it is intended to show by parol, notwithstanding the exact and the plain provisions of the contract, that the lands described therein were not the specific lands purchased at all, but that the contract was intended to embrace other and wholly different lands which were pointed out at the time, the effect would certainly be, by parol evidence to change the terms of the writing upon which both parties are to be presumed to have relied. The contract, as it is written, however, is conceded to contain all that the parties or either of them contemplated it should contain; the offer discloses no matter which if established would justify a chancellor in entering a decree for reformation of the contract. It is stated in the offer that the true location of these two tracts was not known, at all events was uncertain; that the defendants absolutely refused to guarantee any specific location for them; that they agreed, however, “ to express in the [290] contract a covenant that they were the legal and equitable owners of the lands described in the agreement, and would point out, or cause to be pointed out and defined, upon the ground, the boundaries,” etc. But, assuming that the facts set forth in the offer were established by proof, it seems plain that in pointing out the boundaries, the defendants did not assume, expressly or by implication, to become liable for the correctness of the lines they should point out, as they absolutely • refused to become liable for any location ; the only liability for title which they agreed to assume they did assume, and it is written in the body of the contract, in the clause which we have quoted above, which clause it is conceded was inserted pursuant to the parol understanding alleged. No agreement is expressed, and certainly none can arise by implication under the facts alleged, that the defendants were the legal owners of the lands which were pointed out; they agreed that they were the owners of the lands “above described,” that is, according to the description and designation of the written contract. If there was any parol cotemporaneous understanding to a different effect, the plaintiffs, in order to recover in covenant, must not only have averred in the declaration that the parol provision was omitted from the writing by fraud or mistake, but they must establish that averment by such measure of proof as would justify a chancellor in decreeing a reformation of the contract; then, as in equity, that may be considered doné which ought to have been done, covenant may be sustained upon the instrument reformed : Hunter v. Metióse, 100 Penn. St. 88. No such averments are made in the declaration and no such proofs were offered. It is true that parol evidence may in some cases be received, to give locality and identity to the subject matter, and to apply the contract to that subject matter: Bertsch v. Lehigh Coal Co., 4 Rawle 130; Morris’ Appeal, 88 Penn. St. 368. But in this case, it is manifest from the offer that whilst the defendants were to point out the boundary, they were only to covenant for the title to the lands described in the contract; that was all the guarantee they would agree to give; all that was finally required, and all that was given. The subject matter of the contract was the land, which the defendants owned and were about to sell, described and designated by [291] the names of the respective Warrantees, and the covenant of title was so expressed. Nor can we see how under such, circumstances any question of estoppel could be supposed to arise. Under our construction of the offer, the lines were pointed out, but with the understanding by parol that the defendants were to be bound for the location and title according to the clause which was inserted in their contract. The only object of pointing out the lines probably was, that the purchasers might know where the defendants believed the lines to be, and as there is no suggestion of fraud or artifice, or any offer to show that the defendants acted otherwise than in the utmost good faith, we cannot see why they should be estopped from saying that the Rugg and the Waters tracts, under the covenant, are just where they are actually found on the ground. The timber on the Rugg and the Waters tracts, wherever those tracts are located, undoubtedly belongs to the plaintiffs. The defendants can have no just or legal claim to it; even if they found it to their interest they could not compel the plaintiffs to yield it up and take the lands pointed out. • The plaintiffs, however, although invested with the title to the timber on these tracts, according to their true location, have not in any way relinquished their right, nor do they offer to do so ; on the contrary, whilst thejr hold the title to the timber on one location of the lands, they seek to recover the value of the timber on the other. The plaintiffs were not without remedy perhaps in other forms of action, but we cannot see how they can have redress for their alleged wrongs in an action of covenant. Upon a careful examination of the whole case, we find no error which would justify the reversal of this judgment. The judgment is affirmed. Mr. Chief Justice Mercur dissents.