TAYLOR against SMITH, 2 Whart. 432

The opinion of the court was delivered by Gibson, C. J. The obvious intent of the original agreement was that the vendee should pay no more than the balance after payment of the incumbrances; or in the words of the parties, “ all judgments and demands against the estate”—terms large enough to comprehend every thing that was a charge on it. Plow far, then, is their generality controlled by the clause in the conveyance : “ excepting, nevertheless, the aforesaid mentioned and described premisps or piece of land, is subject to a lien or dowership thereon, in favour of Elizabeth Taylor, now Twaddell, during the term of her natural life, according to the form and effect of

an act of the General Assembly.” It is difficult to conjecture what the parties meant by this. They may have intended to express that the land was sold subject to the widow’s annuity, or even payment, to the other children, of the principal retained in the vendor’s hands during her life. It is however not distinctly said that it was sold subject to any thing.

The clause is in form a recital which may have been, and probably was intended to show that the parties were apprised of the fact, and that there was no design to covenant against it: or what is more probable still is, that it was introduced by the scrivener because there was a similar recital in the preceding link of the title. In this state' of palpable obscurity, the meaning is to be taken most strongly against the grantor, who was the person to avoid an ambiguity by speaking out; and the clause is therefore entitled to' no influence.

Most certainly it never was intended that the vendee should discharge this incumbrance out of his own pocket, if there were purchase-money to answer it. But the jury were directed that unless the subsequent sale to the defendant were procured by fraud, he held by title paramount; and that the consideration of the agreement having thus failed, the plaintiff could not recover on it. This superseded all inquiry as to the extent of the incumbrances. Such a construction, however, would put it in the vendee’s power to get rid of the bargain by refusing to perform his own part of it.

The obvious intent was that the purchase-money should be applied to the incumbrances in the first instance; and the jury, instead of being told that the defendant held paramount unless the sheriff’s sale had been procured by fraud, should have been told that the very fact of suffering the property to be sold, was itself a fraud. The qualification thus introduced, instead of being a benefit to the plaintiff, was an injury, as it tended to mask the real nature of the transaction. At the least, it tended to perplex and mislead; and was, in that particular view, erroneous.

It was out of the vendee’s power to get rid of the bargain by any such contrivance. Even had the purchase not been procured by fraud, there would be no reason why the defendant should be cut loose from his bargain, being placed in statu quo by a deduction from the purchase-money.

Before another jury, then, the- inquiry will be whether the purchase-money has been exhausted by outstanding liens—and here it may be proper to say, that the vendor’s share of the principal retained by hitó for the use of the widow, was extinguished in his hands, by the union in his person of the characters of debtor and creditor—and whatever residue there may be, if any, will be recovered. Judgment reversed, and a venire de novo awarded.