Chew v. Parker

The opinion of the court was delivered by Kennedy, J. The first- reasotr assigned in this: case for a new trial, is, that the court permitted the articles dated September 11th, 1794, between William Parker and Moore Wharton of the one .part and James Wilson, Esq. of the other, to be given in evidence. The objection to this was, that it did not appear from any evidence previously given on the trial of the cause, 'that Parker and Wharton had any right, title or interest in the land, which they -thereby agreed to sell and have conveyed to Wilson; that without proof of some interest or right in the land being first shown to have existed in Parker and Wharton, the articles of agreement were not admissible in evidence, and the cases of Faulkner v. Eddy, 1 Binn. 190, Peters v. Condron, 2 Serg. & Rawle, 83, and Hoak v. Long, 10 Serg. & Rawle, 9, recognizing and establishing the rule, that a deed is not evidence without proof of title in the-grantor, have been relied on to support the objection. Now it is evident, that this rule, although perfectly correct as respects deeds of conveyance or of grant, bargain and sale, cannot be applicable in the same extent to a deed containing-merely an ex-ecutory contract between the parties for the future procurement of a. title to land and conveyance of. the same. It is not like the case of a deed of conveyance, the design and object of which are to transfer from the grantor a right or interest in the land to the grantee, which in the very nature of things cannot be, if the grantor has no right or interest whatever to or in the land. That some right or interest did exist in him, ought therefore tó be first shown, other — 296 — wise tbe deed of conveyance is inoperative, and the time of reading it in evidence unnecessarily .spent. In order to make an executory contract effectual between the parties, it is not necessary that the party, who thereby covenants to convey certain lands to the other party at a subsequent day, should have any right to them at the time of entering into the covenant. He is- at liberty and has tbe right to bind himself to do any thing that is not forbidden by law, or to bind himself to abstain from doibg any thing that the law has not enjoined him to do. If he have no title to the lands at the time of making the contract to convey, he thereby makes it his, duty to get one, which is not considered at all impracticable in the eye of the law, before the time, at which he has covenanted to convey the lands, shall come round. If he should fail to procure a title and to convey it according to his stipulation, he will be liable to an action upon his covenant for - a breach of it, which could not be sustained without giving the deed containing such covenant in evidence upon the trial of the cause. It is, however, contended here, that the articles of agreement w.ere offered and given in evidence for the purpose of showing that James Wilson, from whom the plaintiff derived his title to the lands in controversy, derived his claim to them from William Parker and Moore Wharton, and that the articles could be no evidence of this, unless it were first shown, that these persons had an interest in or right to the lands. Here it is proper to recur to and notice that the plaintiff had given in evidence thirty-seven patents dated the 12th of March, 1795, from the Commonwealth to Jeremiah Parker, brother of William Parker, for the thirty-six thousand acres mentioned in' the articles of agreement, and being also the lands in controversy in this suit, as lying iii Northumberland county, on the waters of Sandy Lick creek, also a deed of conveyance dated the 12th of July, 1795, for these lands from Jeremiah Parker, the patentee, to James Wilson, and likewise a deed of conveyance of previous date to this, to ioit, the-17th of March, 1795, for these same lands from James .Wilson .to Benjamin Chew, the plaintiff in this suit, without offering any evidence to explain or account for James Wilson’s having conveyed these lands to Mr. Chew before it" appeared -from the plaintiff’s showing that he had any interest in or right to them, or even the prospect of getting any, and without showing under what arrangement it was that Wilson obtained this subsequent deed of conveyance from Jeremiah Parker. The defendant to supply this omission, and to account for the seeming futility of James Wilson’s conveying lands to the plaintiff for Which it did not appear-that he had even the colour of title, alleged, that Wilson obtained this deed of conveyance from Jeremiah Parker in pursuance and fulfilment of those articles of agreement which he had entered into with William Parker and Moore Wharton on the 11th of September, 1794, and that this would still further appear from bonds and a mortgage, which were executed and given, as provided for in the .articles of agreement, and would also be given in evidence. With á view then — 297 — to show the origin of Mr. Wilson's connection with these lands, what his interest in them was at the time and before he conveyed them to Mr. Cheio, as also the terms and conditions upon which he obtained the title subsequently for them by the deed of conveyance from Jeremiah Parker, the articles of agreement were offered in evidence by the defendant’s counsel and permitted by the court to be read. This court is of opinión, that these articles of agreement were properly admitted to be given in evidence to the jury; for according to the doctrine and principles laid down by this court in Chew v. Barnett and others, 11 Serg. & Rawle, 389, Mr. Chew, the plaintiff in this cause, could have no other or better title under his deed from Wilson than Wilson himself acquired by his deed of conveyance subsequently obtained from Jeremiah Parker, which, if made, subject to the terms and conditions set forth in. the articles of agreement, rendered them not only relevant and admissible against James Wilson in case he had been the plaintiff here, but likewise against Mr. Chew, who claims under him. The second reason is, that the deposition of William Parker, who is not only the party on record to this suit, but the real party in interest, was improperly admitted to be read in evidence to the jury. This deposition was taken under a rule of court in an action of ejectment brought and tried in the Court of Common Pleas of Indiana county of this state, by the plaintiff, Mr. Chew against Joseph Barnett and others, for a part of the same land, the title to which was to be tried in this action by the agreement of the parties. At the time this deposition was taken, William Parker, the deponent, had no title or claim to any of-these lands. His interest in them has arisen since that, under the will of his brother, Jeremiah Parker; and were it not for the agreement of the parties, which was entered into for the purpose of making William Parker, the deponent, a party to this action, as well as for declaring and explaining the design and effect of the judgment, which should be finally given in it, the deposition according to the rule laid down by this court in Chess v. Chess, 17 Serg, & Rawle, 409, ought not to have been admitted in evidence. In this agreement, however, the following clause is contained : “ That the evidence, which has been taken in the ejectment depending in the county of Indiana for Jefferson county, of Benjamin Chew against Joseph Barnett and others, and also against Ira White, shall be admitted to be read on the trial, saving all legal exceptions, which might have been made in those actions.” It has been argued by the plaintiff’s counsel, that this agreement cannot be considered as extending to the admission of the party to the suit, to make testimony for himself, which would be to violate some of the first rules of evidence, which not only exclude the parties on record, but every interested" person in the suit, from-becoming witnesses in support of their interest on the trial of the cause. And again, that the agreement by its very terms embraces only suits then pending, but the action, in which Parker’s deposition had been taken, was not then pending, — 298 — for it had been tried and determined some considerable time before the date of the agreement. There is certainly great force in these objections. I must confess, that at the time of the trial I had great doubt as to the propriety of admitting this deposition, but upon more full deliberation, I feel satisfied, that under the agreement of the parties, and the particular circumstances connected with the suits mentioned in the agreement, it was rightly received. This agreement provides expressly for the admission of the evidence taken in the ejectments in the county of Indiana, of Benjamin Chew against Joseph Barnett and others, and although the agreement mentions it as a case then depending, yet it was the only ejectment that Mr. Chew ever had brought in that county against Joseph Barnett and others, and the deposition of William Parker was the only evidence taken in it; so that there was no other case between these same parties either depending or determined, but this one, to which the agreement of the parties can be applied, and no evidence taken in it, to which the agreement could have a reference, b.ut the deposition of Parker. In the absence of all testimony going to show, that this ejectment of Benjamin Chew against Joseph Barnett and others was introduced into the agreement either by mistake or fraud, we, in order to give effect to the agreement, are compelled to consider it as one of the actions intended to be referred to by the parties; and the deposition of William Parker, as it was the only one taken in the cause, as the evidence that was referred to in connexion with the cause, and provided for, to be given in evidence on the trial of this cause, unless it could have been objected to in the cause, in which it was taken, which does not appear that it could. This construction may not be treating the participle “ depending,” which is the word used by the parlies in the agreement, according to its strict grammatical sense, as it is in the present tense, but then a grammatical construction is not to be regarded, when it would, as in the present case, render that inoperative, which was clearly intended to be otherwise. The third and fourth reasons involve the same principle, that is, whether the deeds offered in evidence and rejected, were relevant to the issue trying, and could, as evidence, have any legitimate bearing upon the matter in controversy. These deeds or documents contained upon their face no reference or allusion whatever to the thirty-six thousand acres of land, the title to which is the great matter in question here, nor do they appear to have any bearing or connexion with any agreement between William Parker and Moore Wharton with James Wilson, or between Jeremiah Parker and Wilson, relating to these lands, or the sale of them, or price of them, nor yet to have grown out of the indebtedness of James Wilson, for and on account of the purchase of these thirty-six thousand acres. Neither was any evidence offered to show that they had any such connexion or relation to the matter in controversy in this cause; although it was said by. the plaintiff’s counsel that the — 299 — object was to prove that James Wilson had made satisfaction for the price of these thirty-six thousand acres conveyed to him by Jeremiah, Parker. Thus it appears, that those deeds offered in evidence, were not shown to have any connexion with, or bearing upon the cause. They were not even between the same parties to any of the transactions out of which this controversy has grown. Again, these deeds were given long before the purchase-money due from Wilson to the Parkers and Wharton became payable; and beside all this, it appeared, that the bonds which had been given by Wilson for the payment of the purchase-money of the thirty-six thousand acres were still in the possession of the obligees or their assignees, w'hicbi could not have been the case, consistently with what was alleged, or rather suggested by the plaintiff’s counsel, when they offered these deeds in evidence; for if the deeds so offered had been founded upon an accord for the satisfaction of these bonds, or the debt for which they were given, they would have probably, as certainly they ought to have been, given up to Wilson. The admission of such evidence, might have had a tendency to mislead, confound and distract the minds of the jury, but could have furnished them with no light upon the matters in issue, and was therefore properly rejected. The fifth reason is to the charge of court to the jury as to the effect of that part of the agreement of the 11th of September, 1794, between Parker and Wharton with Wilson, which provides for the giving of a mortgage to secure the payment of the purchase-money, either upon the lands sold, or upon other lands of equal value to be furnished by Wilson at his election. There was nothing wrong in the charge given to the jury upon this point. This court considers the charge in this particular, a true exposition of the agreement. The sixth reason also arises out of the charge to the jury, where they were told that 1 thought that they would agree, that unless those persons who were interested in the land, and sold it to Wilson, consented, and most explicitly, that he should have the land clear of all claim on account of the purchase money, it would not be just or equitable that he should have it so. This part of the charge must be considered with reference to all the documentary evidence given in the cause, on the part of the defendant, in relation to his claim upon the land sold as a security for the payment of the purchase-money; and this court is of opinion, that when the articles of the 11th of September, 1794, the deed from Jeremiah Parker to James Wilson, the mortgage from Wilson and the bonds given by him, which are recited in the mortgage to be of even date with it, to secure the payment of the purchase-money, are all examined, they will evidently appear to be links of the same chain, and must be considered component parts of the same transaction, and that every thing done subsequently to the date of the articles, was done in execution and in pursuance of the articles of agreement, because there is nothing else to which these subsequent transactions can be referred, to render them intelligible: That this is a conclusion of law, growing out of this — 300 — documentary testimony, and hence the mortgage is to be considered as given under the provision contained in the articles for that purpose ; and that the difference in the dates of the deed of conveyance from Jeremiah Parker to James Wilson, and the mortgage from Wilson, did not furnish sufficient ground for the jury to presume that the sellers of the lands to Wilson had agreed to accept of the bonds as their only security for the payment of the purchase-money from him, and to relinquish their right and claim to the mortgage, contrary to the express terms of the agreement. The opinion of this court expressed as to the sixth reason, disposes of the seventh as being .also insufficient. There is nothing in the eighth reason, which is the last. In answer to the attempt on the part of the plaintiff’s counsel to distinguish this case from the case of Chew v. Barnett, 11 Serg. & Rawle, 389, the court think proper to say, that the great leading features of the two cases are the same. The circumstance of the articles of agreement of the 11th of September, 1794, being given in evidence on the trial of this cause by the defendant instead of the plaintiff, as in the case of Chew v. Barnett and others, can make no material difference. The effect and bearing of these articles upon the case, from their nature and tenor must be the same, whether given in evidence by the one party or the other. The principles, therefore, laid down by this court in the case of Chew v. Barnett and others, are strictly applicable to, and govern the present one. The motion for a new trial is dismissed, and judgment entered upon the verdict. Rogers, J. and Ross, J. dissented. New trial refused, and judgment for the defendant on the verdict.