Paull against Mackey, 3 Watts 110

The opinion of the Court was delivered by Sergeant, J. The plaintiff has a deed dated the 8th of December 1821 from W. Pauli. The defendant, Mackey, claims title under agreements with W. Pauli before and after this deed, and a ratification thereof by the plaintiff. He also contends that the plaintiff, subsequently to his deed, rescinded the contract with W. Pauli under which the deed was executed, and thereby relinquished all claim to the tract. It would seem that in the spring of 1821, while W.

Pauli was owner.of this tract and carrying on the iron business at several works in partnership with Basil Brownfield, under the firm of Pauli and' Brownfield, this firm incurred a debt to the defendant, M'aclrey, by giving him twenty notes of 50 dollars each, and as a security for the payment W. Pauli placed Mackey in possession of the Cold Spring tract, for which this ejectment is brought, under an agreement that he should hold it as security for the payment of said debt. Of this money it is stated by Brownfield, a witness for defendant, that not more than half the amount was received by the firm.

Soon after-wards the firm was dissolved and W. Pauli carried on the business. Another contract was made in the fall of 1821, between W. Pauli and Mackey, which purports to have been reduced to writing on the 15th of December 1821, but was not executed till the 28th of October 1822, nearly a year after. It recites the first contract and states the additional agreement to be, that W.

Pauli should buy of Mackey grain, meat and hay, to be raised on Mackey’s farms, and that the tract should be held as security for these debts also; with the addition of a clause for a conditional purchase by Mackey, upon his pay-, ing to W. Pauli in the mode above mentioned the full price of the plantation, to be agreed on by them, or in case of disagreement, by three men to be chosen by them. The defendant contends that this event did occur: that the debts, See. within the meaning of the contract equalled and exceeded the price of the farm, which W. Pauli on the 28th of May 1823 agreed to fix at 2500 dollars.

This.agreement between W. Paull and Mackey, dated the 15th of December 1821 but not exectiled till the 28th of October 1'822, is an agreement for a mortgage, but also contains by the same clause a proviso for a pure base, on the happening of a certain event. This purchase however was still executory, to be consummated by future acls of the parties fixing the value or choosing arbitrators. It might be a question whether it would be treated in equity as any thing else than a mortgage throughout.

But it seems to me clear that it is only he who has the title to the land, that on the one hand could redeem, or on the other hand fix the price or value of the farm for a sale. It could not be that these rights should remain in W. Pauli when he ceased to have a resulting interest in the land of any kind. They belonged to the person that had the title to the land, who in this instance was the plaintiff, James Pauli, Jun., unless he renounced them expressly and clearly, which he does not appear to have done.

What were the rights of the parties, however, under these agreements it is unnecessary to inquire, because the plaintiff is not bound by them further than, he had agreed to ratify them. They were made, so far as appears, without his knowledge or assent at the time, and derive their efficacy as to him only from his contract of the 30th of March 1822, by which alone his obligations and the rights of the defendant are to be determined.

The circumstances that led to this contract were as follows. ( On the 15th of December 1821, a week after his deed, the plaintiff had leased to one Campbell, for five years from the 1st of April ensuing, and covenanted to deliver possession. He also gave notice to Mackey to quit. Before the 1st of April, however, it appears the two parties became aware of the conflict liltely to arise between them from the previous acts of W. Pauli. J. Pauli perceived that W.

Pauli had come under engagements to Mackey and placed him in possession, by which his own agreement with Campbell would be frustrated, and he be subjected to an action- by Campbell for breach of covenant. To prevent this the agreement of the 30th of March 1822, between plaintiff and defendant, is made. It purports to recite the agreements between W. Pauli and Mackey, as represented by Mackey; and the representation of the plaintiff as to his title and his ignorance and the difficulty he had got into with his tenant. I consider J. Pauli, Jun. as bound by the agreements only as thus represented.

It does not appear that the draft of the 15th of December 1821 was shown to him; nor does the language used warrant that supposition. On the contrary it is the representation of Mackey of the agreement that J. Pauli is here bound by, and no more. And in this what relates to the conditional purchase clause is so incongruous and unintelligible,-that it is impossible to give it any definite meaning. At the same time I am of opinion that, if recited clearly, the acts done by W. Pauli afterwards, would not vary tbe rights of the parties, for the reasons I have already stated.

The true construction of the agreement of the 30th of March, and the clause of relinquishment by the plaintiff in its close, appears to be, that the plaintiff, in consideration of (he defendant’s agreeing to take Campbell as his tenant, agrees that Mackey should hold the land until, out of the rents and profits or otherwise, he was reimbursed clear of all just charges and expenses; in the first place, the debt due to him by the late firm of Pauli and Brownfield, on all or any of the notes of hand to him given, and next the debt due to him by W.

Pauli for articles of agricultural produce of the kind mentioned, viz. grain and meat furnished to W. Pauli either before or after the 30th of March 1822, while W. Pauli carried on the iron works. And that whatever Mackey can, prove to be due to him on these accounts must have been paid before he can be ousted from tbe possession.

We are further of opinion that Mackey had no right to hold this tract against the plaintiff for the purpose of paying off the debts of Pauli and Brownfield to other creditors of theirs, as it would seem is contended by Mackey and these creditors under some verbal agreément or understanding at some period or other amongst them. No such right is stipulated in the agreement of the 30th of March 1822, nor even in the sketch of the 15th of December 1821. It cannot be tacked to the mortgage by parol, and is in no way binding on the plaintiff.

Having thus noticed the more material points of this case, I shall proceed to consider the rest under the various heads which present themselves in the record. The first error relied on by the plaintiff in error, is that contained in the second bill of exceptions, the admission by the court in evidence of the certificate of William Pauli, dated the 25th of November 1822, that he had that day settled with the defendant and found in all their accounts, say debts and sureties, a balance of 3000 dollars due him, which he is to have a credit for on account of the farm he had purchased of him.

This certificate was certainly not evidence against the plaintiff in this suit. The debts due to Mackey must be shown by the usual evidence of their existence, not by the certificate of W. Pauli, after he had ceased to do business. This certificate was further objectionable in purporting to authorize a credit for “ sureties,” a class not within the contract of the 30th of March 1822, and also in fixing a purchase as having taken place, when W. Pauli had not, after the deed to plaintiff, any interest in the land, and had nothing to do with any purchase or sale of it.

There was error therefore in receiving this certificate in evidence. The next error assigned is in.the third bill of exceptions to the agreement, dated the 28th of May 1823, between W. Pauli and Mackey, by which W. Pauli agrees to fix the price of the farm (which it states he sold to Mackey some time ago) at 2500 dollars, and Mackey on his part agrees to let the price be so fixed. This agreement was, for the reasons I have stated, of no validity whatever against the plaintiff.

The right of fixing the price, and the right of making sale of the property, belonged to the plaintiff as the owner of it, after it had answered the purposes for which it was placed in the defendant’s possession, namely the payment of debts: and W. Pauli, in undertaking thus to dispose of it under the agreements between him and Mackey, acted without authority and could not bind the plaintiff. There was error therefore in receiving this evidence. The fourth bill of exceptions is to the admission of William Nixon as a witness for the defendant.

This witness declared on his voir dire, that he had a debt against Pauli and Brownfield, which Mackey was to pay in case of his success. It was also proved by Brownfield that Mackey, in consideration of getting the Cold Spring tract, was to pay the debts of the firm of Pauli and Brownfield: that this agreement was made in June 1821 or later, after the dissolution of the firm. Nixon further stated that Mackey never made any promise to him.

It would seem therefore that Nixon, in giving evidence to promote the success of Mackey, was aiding to preserve a fund for the payment of his own debt, which fund he will lose if the plaintiff recovers. _ He has therefore a direct interest in the defendant’s success in making out a title to this tract of land, since on that thc-paymcnt of his ’ debt by Mackey depends. There was error therefore in his admission to testify on behalf of the defendant.

The fifth, sixth and seventh bills of exceptions embrace evidence offered by the defendant and admitted by the court, to show acts and opinions and declarations of the plaintiff going to prove that he had rescinded his contract with William Pauli, and abandoned the title acquired under his deed. If a title by deed could be divested by proof of this kind, real estate would be held by a very loose tenure indeed.

Let it be supposed that a party having a complete title should think he has no right, and under this impression seek to strengthen it by acquiring additional muniments; or being mistaken in a question of law of difficult solution, should declare he had no title: would evidence of all this take away his title? Unquestionably not: this evidence would leave things just where they were before: the written title remains.

It is to guard against such modes of settling questions of title to real estate that the act of assembly of 1772, for the prosecution of frauds and perjuries, expressly forbids parol grants, assignments, or surrenders of interests in land. It was improper therefore to receive the evidence contained in the deposition of J. B. Trevor of the plaintiff’s procuring an assignment of a judgment against William Pauli, under the idea that it was a lien against his interest in the tract in dispute, with directions to levy on it.

So also the plaintiff’s claiming the St John’s Furnace was irrelevant to the question of his title to the Cold Spring land, under his deed. He might really remain the owner of the St John’s Furnace lands, &c. because William Pauli had not complied with his contract; or he may since have acquired another title to it; or he might have mistaken his right in contracting to sell it.

Its introduction in this cause could only embarrass by leading into a trial of the plaintiff’s title to St John’s Furnace, a matter irrelevant to the issue trying; or present a fact of doubtful complexion, from which the strongest inference that could be drawn would be that the plaintiff supposed he had a title to the Furnace lands, and contracted to sell them — an inference of no consequence in this suit. I am therefore of opinion that the court erred in receiving the evidence objected to in the fifth, sixth and seventh bills of exceptions.

The eighth, ninth and tenth errors assigned are embraced in the former part of this opinion, and need not be again referred to. Judgment reversed, and a venire facias de novo awarded.