Seitzinger against Ridgway, 4 Watts & Serg. 472

The opinion of the Court was delivered by Kennedy, J. — Notwithstanding the assignment of twenty-two errors in this case, it is susceptible of being resolved into the following questions: First. Did the written agreement of the 16th of August 1827, between Jacob W. Seitzinger and Thomas S. Ridgway, and the written agreement of the 19th of December in the same year, between George D. B. Keim and Thomas S. Ridgway, vest such an interest in Thomas S. Ridgway, the plaintiff below, to the lands in question, o.r to any part thereof, as will enable him to maintain this action ? Secondly.

What lands formed the subject-matter of and are embraced within these' agreements? Thirdly. Was John Bannan, Esq. a competent witness; and if he was, was the main part of his evidence competent ? It is proper, however, to premise before answering these questions, as also to bear the same in mind throughout, that Jacob W. Seitzinger and George D. B.

Keim were joint contractors for the original purchase of the Lee lands, that is, the lands surveyed under the warrants in the names respectively of George Henninger, Susannah Sillyman and Henry Thiehl, which are the only lands, as will be shown in the sequel, that are included in the agreement of the 19th December 1827, for their own use, to hold the same as tenants in common, though by an agreement between them the legal title thereto was to be conveyed by the seller to George D. B.

Keim alone, who was to hold an undivided moiety thereof for his .own use, and the remaining undivided moiety for the use of Jacob W. Seitzinger. Now as to the agreement of Jacob W. Seitzinger with Thomas S. Ridgway of the 16th of August 1827, it is perfectly clear that no right whatever to the land, therein mentioned, is thereby vested in the latter; neither does it appear that it was so intended; on the contrary, it is thereby expressly declared “ that Thomas S.

Ridgway is to have one-third of the nett proceeds of the aforesaid lands, that is to say, one-third of profits, after deducting costs and interest upon the said one-third, in consideration of his services in the sale of said lands.” It is evident, from the terms of this agreement, that a sale of the lands was contemplated, in which Thomas S. Ridgway was to have an agency, and for his services in effecting sales he was to have a certain proportion of the nett proceeds or profits arising therefrom, and not any interest or right in the lands.

Though the plaintiff below gave this agreement in evidence, I do not understand it to be relied on by his counsel as constituting him a tenant in common of the lands. But the agreement of the 19th of December 1827, with George D. B. Keim, is urged as being all-sufficient for that purpose. This agreement it is true, though in terms not a conveyance of any immediate interest in the lands, does contain an engagement on the part of George D. B. Keim seemingly “ to convey to Thomas 8.

Ridgway, his heirs or assigns, the undivided third part of a moiety, being one-sixth part of the whole of a certain tract of land situate on the waters of Mill creek, in Schuylkill county, ad joining land of Francis B. Nichols, Esq., Kettle and Wagner, Potts and Bannan and others, containing by estimation 1200 acres; being the same tracts of land which are known by the name of Lee’s lands; to be conveyed to said Ridgway, when the title to said land shall be arranged and settled, agreeably to the understanding and agreement made with Jacob W.

Seitzinger.” The court below, however, in one part of their charge to the jury, appear to consider this agreement not merely of an executory character, and as only binding Keim to convey the one undivided sixth part of the lands to Ridgway at a future day, but as conveying to and vesting in him immediately a right and title to onésixth of the lands, whereby if the lands, were not then in the actual possession and occupation of Keim and Seitzinger, the constructive possession thereof became eo instante vested in Ridgway; for the court say “ if the jury believe the land was wild and unoccupied, and not in the actual possession of Keim and Seitzinger, and not occupied by them when the agreement of the 19th of December 1827 was made with said Keim, it would put the plaintiff (Ridgway) in the constructive possession of the land mentioned in itmeaning such possession of it as would enable him to maintain his action for a partition thereof, unless he had since been actually ousted of it.

In this we think that the court erred; for according to the terms of the agreement it is manifest it was not intended to have any such operation and effect as the court gave to it.

But the great error of the court was in their rejecting the agreement of the 16th of August 1827, made by Seitzinger with Ridgway, as being the agreement referred to in the agreement of the 19th of December following, made by Keim with Ridgway, and in not considering the former of these two agreements as a part of the latter; but considering the agreement made with Seitzinger and referred to, as an understanding, or one merely by which the title to the lands was to be arranged and settled, and that it was referred to only for the purpose of showing or ascertaining the time when Keim should convey one-sixth of the lands to Ridgway.

Though the agreement deferred to as made with Seitzinger is not mentioned as being in writing, which the court below seem to have considered a material circumstance, and to have laid some stress on, yet it is fair and right indeed, to presume that it was; otherwise, the subject-matter of it being land, it would be wholly inoperative and of no avail, in passing an interest or estate therein, under the Act of Assembly against frauds and perjuries.

If the agreement with Seitzinger, referred to by Keim in his agreement, had been merely verbal, it might have rendered Keim’s agreement inoperative under the Act against frauds, because not reduced into writing so as to give it effect according to the intention of the parties, without the introduction of parol evidence to show what it was, which could not have been admitted for such purpose. Every material part of an agreement for the purchase or sale of lands must be put in writing and signed by the party passing the right therein; no

part can be supplied by parol evidence; otherwise no interest or estate will pass or be created, excepting in the case of leases for a term not exceeding three years. But here there was an agreement made with Seitzinger, relating to the same lands, on the 16th of August preceding the date of Keim’s. In the absence of all evidence tending to show the existence of any other agreement with Seitzinger in writing, we must take it that the agreement of the 16th of August 1827 is the one referred to by Keim in his agreement of the 19th of December following.

It is not unreasonable to suppose that Keim, at the time of making his agreement, was, at least, in doubt as to the import and tenor of Seitzinger’s agreement, as it was not shown to him though in the possession of Ridgway, but not being willing to make any agreement with Ridgway that would not be in perfect accordance with Seitzinger’s agreement, he therefore referred to the latter as one to which his own must, in every respect, be subject. In short, for the purpose of making Seitzinger’s agreement the controlling one, and his own subservient to it.

Thus binding himself only to observe and carry into effect Seitzinger’s agreement, whatever it might be. It is obviously referred to as an agreement that would speak for itself, and therefore, most probably, must have been understood to be in writing, and not one resting in parol. merely, that depended for its establishment upon the proof of loose or casual conversations. The very circumstance too of Keim’s agreement being reduced into writing tends to show that the parties were unwilling to let any agreement between them relative to the same subject rest in parol without being reduced to writing.

It is most likely that Ridgway had become dissatisfied with his agreement made with Seitzinger, which gave him only a certain portion of the proceeds or profits, which should arise from sales of the lands, as they could be effected from time to time, and was desirous, instead thereof, to obtain a right to or interest in the lands themselves, and finding that Keim was willing to give him such right or interest, if consistent with the previous agreement which he had from Seitzinger relating to the same lands, concluded to take all that Keim was willing to give him, and take his chance for what he might be able to make out of it afterwards.

This inference seems naturally to arise from the fact that Ridgway was in the possession of Seitzinger’s agreement at the time he obtained Keim’s, but did not think it advisable to produce it and show it to him; indeed it is very probable that if he had, no agreement would have been signed by Keim, or at most, not one couched in the same terms. The agreement therefore with Keim was, at most, only a covenant by him to convey to Ridgway one-sixth of the whole land, or one-third of that which remained unsold, according to the understanding and agreement made with Jacob W.

Seitzinger, as soon as the title to it should be settled and arranged; which as it seems from some of the parol evidence, was thought to be affected, perhaps in part at least, by older warrants and surveys than those under which Lee held and sold it.

The agreement made with Seitzinger is obviously referred to for the purpose of determining the nature and extent of the interest that should be given or conveyed to Ridgway; that is, whether it should be a portion of the land itself, or of the money that should arise from the sale of it; and not as the court below supposed, to determine or fix the time merely when a conveyance of one-third of the land remaining unsold should be made by Keim to Ridgway.

To / say that Keim should convey to Ridgway as soon as the title to the land should be settled and arranged agreeably to an understanding and agreement made with Seitzinger, when no agreement In relation to such matter was shown to exist, and in truth when from the very nature of the thing none could well even be imagined to exist, would be unmeaning and without force, because the only difficulty that was supposed to exist in regard to the title to the land, if it existed at all, was the older claims of third persons, and therefore could only be removed or settled by an understanding and agreement to be made, not with Seitzinger but with those third persons.' We therefore consider the agreement of Keim as a confirmation merely of the previous agreement made with Seitzinger, and as giving Ridgway an interest in the proceeds of the lands after sales thereof shall be made, but not as giving or vesting in him any right to the lands themselves, so as to enable him to maintain either an action of partition or ejectment for them.

The second question renders it necessary to inquire and ascertain the specific lands intended to be made the subject-matter of the two contracts, and to which the engagements therein contained must be applied. The description of the lands, as contained in the agreement of the 16th of August 1827, with Seitzinger, is very vague and uncertain, referring to nothing by which their location could be rendered certain, unless it be that they are the same lands which George Keim and Jacob W. Seitzinger, of Reading, had purchased, lying on and about the Mine Hill, in Schuylkill county, containing about 1400 acres.

But the second agreement with Keim contains a description, as to their identity and location, which would seem to remove all doubt on the subject. For after describing them as a tract of land, situate on the waters of Mill creek, Schuylkill county, adjoining land of Francis B.

Nichols, Esq., Kettle and Wagner, Potts and Bannan, and others, containing by estimation 1200 acres, it declares them to be the same lands known by the name of Lee’s lands; and in the conclusion further states, that one moiety thereof had been sold to Samuel Wetherill; for the one-third of the nett profits or proceeds whereof Keim binds himself to account to Ridgway, after deducting the purchase money paid for it and the expenses attending the same.

Now it appears that Mordecai Lee had become the owner of three contiguous tracts of land at or in the neighbourhood of the above description, surveyed under three several warrants granted, one to George Henninger, second to Susannah Sillyman, and the third to Henry Thiehl, containing in all about 1200 acres and 85 perches.

That Keim & Seitzinger had agreed with Lee for the purchase of these lands anterior to the 16th of August 1827, when Seitzinger made his agreement in relation to the profits to be made by a resale of the same, and that on the 15th of November immediately preceding the date of Keim’s agreement with Ridgway, Lee and his wife conveyed these lands to Keim as being held under the warrants mentioned above and included within the surveys made in pursuance thereof.

These facts being made to appear, no doubt could be entertained as to what lands were meant by the “Lee’s lands,” when it was not shown or pretended that Lee ever claimed any lands in that

section of the country, other than the three tracts surveyed under the warrants in the names respectively of Henninger, Sillyman & Thiehl. It appeared also that the lands surveyed under these warrants were the only lands to which Seitzinger & Keim had any right and claim in that part of the country at the times of their respective agreements with Ridgway; so that their agreements cannot well be considered as applying to and embracing any other land.

All the evidence, therefore, given, going to show that other lands than those included within the surveys made in pursuance of the three warrants were said or reputed to be the Lee lands or claimed as such, was irrelevant, even supposing Ridgway to have had a right to a partition of the lands mentioned in the two agreements, and calculated to mislead the jury who tried the cause, and the inquest afterwards who aided the sheriff in making the partition, and consequently ought not to have been received. The next question is, was Mr Bannan a competent witness for the plaintiff below ?

It seems that he is and was at the time a judgment creditor of the plaintiff to the amount of $2500 or $2600, beside interest thereon, and that, according to his testimony, the payment of his judgment depended mainly, if not entirely, upon the plaintiff’s being able to establish his right to the land of which he claimed to have partition made in this action. The witness, therefore, being called, as such, to support the right of the plaintiff to the land, was called to give evidence in favour of his own interest, which was not inconsiderable.

But this he could not do according to the rule of law on the subject; and was therefore incompetent on account of his interest in the event of the suit.

We do not mean to say that in every case where the witness is a judgment creditor of the plaintiff in such action as the present, that of itself is sufficient to render him an incompetent witness for the plaintiff, because it may be, that the plaintiff has other real estate clear of all dispute, upon which the judgment is a lien, of a value greatly more than sufficient, under any circumstances, to make the payment of the judgment perfectly secure; in such case the interest of the creditor would not seem to be such as to exclude him from being a witness for the plaintiff; but in a case like the present, where, as the judgment creditor himself testifies, there is but “ a slim chance of his getting the amount of his judgment, unless the plaintiff can establish his right to the ■ lands in question,” the interest of the creditor is so gross and palpable that it is impossible to say that he is otherwise than deeply interested in the event of the suit, and therefore incompetent to be a witness for the plaintiff.

But this is not all, for a great deal of his testimony was likewise incompetent. In his narrative he is permitted to expound and explain the agreement of the 19th of December 1827, which he reduced to writing between Keim & Ridgway, which ought to have been done by the court and not by the witness.

And again, further to show that, by mere verbal agreements between Keim, Seitzinger & Ridgway, Ridgway was to have not only an interest in the Lee lands, those actually purchased by Keim &L Seitzinger, but likewise an interest in additional lands that should thereafter be purchased; and for the purpose of giving Ridgway, as may be fairly inferred, an interest in those other lands, after the purchase of them by Keim & Seitzinger, under the agreement in writing with Keim, if possible, to prove that they were also called the Lee lands.

Such evidence was' inadmissible, in the, first instance, because it varied and changed the written agreement of the parties; and, in the second instance, because it was an attempt to create and pass an interest in fee-simple in lands without writing, contrary to, the Act against frauds and perjuries. Judgment reversed, and a venire de novo awarded.