Lessee of Sherman v. Dill

Per Cur. The admissibility of the testimony offered, depends solely on the legal operation of the articles of agreement between Jacob Sherman and George Fridley. If the former conveyed *thereby his legal interest in the land to the latter, r* „ then the evidence should be received ; because, when the L 9 vendee had fairly contracted with others, his remaining interest in the land was subject to be sold by the sheriff for his debts, and not the right he had parted with. In every agreement the intention of the parties is to be considered ; Plowd. 290, 292. 3 Burr. 1477. And it is said, 4 Term Rep. 335, there is no rule of law so reluctant, that it will not recede from words, to enforce the meaning of the parties. 1 Atky. 8. If the intention is clear, that an estate should pass, courts will construe deeds in support of that intention, different from the formal nature of those deeds ; and ón the other hand, an instrument for the sale of lands has been construed as an agreement to convey, though it contained words in the present tense, or “do sell” “and deliver,” because it accorded with the meaning of the parties. The present case bears a strong analogy to Stouffer’s lessee v. Coleman, which was determined at Lancaster, on great argument, at Nisi Prius. There bonds had been given by the vendee, which were prosecuted to judgment. As to the contract made with Caruthers and Dill, it is stated therein, that the lands were held under Jacob Sherman ; and it is fully settled, that whatever is sufficient to put the party upon an inquiry, is good notice in equity. 2 Fonbla. 255. The true intention of these contracting parties cannot be mis taken. The payment of the 150I. and the assignment of the iool. bond, were to precede the making over the land by a sufficient deed of conveyance ; and the performance of those acts was postponed until the 1st March 1793. We cannot therefore hesitate to say, that the legal title continued in Jacob Sherman, until those acts were done, and that the equitable interest alone vested in George Fridley, under the agreement, according to the true intent thereof. This legal title was devested out of Sherman, by his deed, executed under the recommendation of this court, containing a clause of general warranty; and the judgment entered in the suit, immediately attached on the lands. Consequently, the lessor of the plaintiff, becoming the vendee of the sheriff, the legal and equitable interest in the premises, independently of all sales or contracts made by George Fridley, at any period subsequent to the execution of the original articles, became vested in him by operation of law. The result is that the testimony must be overruled. The defendants’ counsel afterwards offered the deposition of Richard M'Alister, esq., now deceased, taken on the 26th November 1790, previous to a hearing before the Board of Proper [298] ty, on a caveat entered by Jacob Sherman, against surveys made * -, *on five warrants granted to George Ross and company, 299J the witness having been cross examined by Sherman ; but the same was overruled by the court, as a point which had frequently been decided by’ the court. Cited in 3 Rawle 435 to shew that if the intention is clear that an estate shall pass, courts will construe deeds in support of that intention, different from the formal nature of those deeds. Cited in 27 Pa. 301; 33 Pa. 249; 48 Pa. 385 to shew that the intention of the parties will control the technical words used. Messrs. Duncan, Hopkins and Clark, pro quer. Messrs. Bowie and Watts, pro def. Verdict for the plaintiff.