The paper produced at the hearing was properly rejected by the assistant vice chancellor, even if it was competent for the complainant to give in evidence an eviction under paramount title, subsequent to the commencement of the suit, and without filing a supplemental bill stating the fact of such eviction. In the first place, the notice was not sufficient to authorize the complainant to produce, at the hearing, a record of a verdict in the ejectment suit against the complainant. To authorize a party to produce, at the hearing, documentary evidence which is not made an exhibit before the examiner, nor distinctly referred to in the pleadings, the notice should state sufficient of the substance of the document intended to be produced, to enable the adverse party to see that it would be evidence of some fact against him. The object of requiring the party to give notice of his intention to use documentary evidence upon the hearing, ten days before the closing of the proofs, was to enable the adverse party to produce evidence before the examiner to counteract the effect of the documentary . evidence mentioned in the notice. Thus, if the complainant had given notice- to the defendant before the proofs were closed, that the ejectment suit had been brought to trial, and that a verdict had been rendered for the plaintiffs in that suit, and that a copy of the minutes of the clerk, duly authenticated so as to make it legal evidence under the law of the, United States,-would l>o *590produced at the hearing, showing that fact, it would have been competent for the defendant in this suit, to produce evidence before the examiner to show that the verdict had been obtained by collusion between the parties in the ejectment suit, or that it was- obtained -upon proof of title to the land derived from Miller himself; or that the verdict had been subsequently vacated or set aside by the court in which it had been rendeven. The complainant had a right to produce the documentary evidence referred to in the pleadings, to pi ove the fact of the ejectment suit, and for what, pmmises it was commenced, if that fact was not sufficiently admitted in the answer of the defendant ; but for no other purpose. Nor was a verdict in an ejectment suit, not followed by a judgment, tantamount to an eviction. So that the evidence would not have helped the complainant, if a proper notice of the nature and effect of the documentary evidence intended to be produced had been given. This' case, therefore, must be decided upon the facts as they existed at the time of the commencement of this suit, and as they are presented by the pleadings.
The assistant vice chancellor was right, as to the construction of the last clause of the 17th rule. Where an answer on oath is not waived, matters stated in the bill as being within the personal knowledge of the defendant, are to be taken as true upon the hearing. But not where the complainant elects to take upon himself the burthen of sustaining the allegations in his bill, without the aid of a discovery from the defendant, by waiving the answer on oath. For in that case, the answer is a mere pleading; and the general traverse at the conclusion thereof, puts every thing' in issue which is not- admitted by the answer; as provided for by the 40th rule of the court of chancery.
The new matters set up in the answer, as a defence, are not proved, and cannot therefore avail the defendant, if the matters of the bill which are admitted in the answer are sufficient to entitle the complainant to a decree granting the relief asked for in his bill, or any part of it.- The complainant, however, cannot avail himself of a part of the new matters, which are *591set up in the answer as a mere pleading, to. make out a case foi relief not stated in his bill, and at the same time reject the other matters connected therewith as a part of the defence stated in the answer.
The charge in the complainant’s bill is, that at the time of the execution of the deed to the complainant, and when he gave his note for the purchase money of the land in Pennsylvania, he believed that the deed conveyed to him a good title to the land, but that he has since discovered that the defendant’s title was defective and void, as against the paramount title of other claimants, the real owners of the land ; that the complainant did not obtain the legal title under the defendant’s deed; and that the owners of such paramount title have since commenced an ejectment suit against the complainant, to establish their rights to such land. The bill further charges that at the time of . the commencement of the suit upon the note, Avery was insolvent or irresponsible, and that he then knew no legal title to the land was conveyed to Miller by the deed of 1836. The answer denies these allegations in the bill, and shows that the defendant, instead of being insolvent or irresponsible, has a large visible property, and is worth ten times the amount of the consideration mentioned in his warranty deed. This leaves the complainant’s right to relief in this case to stand upon the simple grounds that a suit has been commenced against him, by persons claiming to be the owners of the land for the purchase money of which the note was given, and that the defendant has given a deed with warranty. For I have looked in vain for any allegation in the bill, or admission in the answer, that by the laws of Pennsylvania a judgment, recovered against a former owner of real estate, is a lien upon land which he had previously conveyed; so as to give to a purchaser under an execution upon the judgment a title which will overreach a conveyance from the judgment debtor, made before the recovery of the judgment, where the' deed from the"sheriff is recorded before the recording of such prior conveyance. ' Such is not the rule of the common law. And if there is any statute, or other local law in Pennsylvania, changing the rule of the *592common- law in this respect, our courts cannot take judicial notice of it. But it must be proved as a matter of fact, if not admitted by the pleadings in the suit.
It may be proper to state, however, that if there is such a local law in Pennsylvania, the matters .set up in the answer, if proved, would be a bar to any suit by the complainant here for relief, even if the defendant was insolvent and a recovery bad been obtained against the grantee of Avery upon the ground that the purchasers had acquired the legal title to the land because their deed was recorded previous to the recording of the conveyance of December, 1833-, from W. Church to A. K. Maynard- ; and that too without reference to the allegation in the defendant’s answer that the purchasers at the sheriff's sale knew, at the time of their purchase, that the judgment debtor had no title to the land when the judgment was recovered, or at the time of the sale of all his interest in the land, by the sheriff.
The answer states that in December, 1833, which was nearly two years before the recovery of the judgment under which the plaintiffs in the ejectment suit purchased, W. Church, against whom that judgment was subsequently recovered, conveyed- the land in question to Maynard, by a conveyance duly executed and properly acknowledged, and that in April, 1834, Maynard conveyed the same land to Avery, the defendant in this suit; which last mentioned conveyance has been recorded in the county where the lands lie. The answer further states that at the time of the conveyance from Avery to Miller, the latter was informed that the deed- from Church to Maynard was not recorded, and agreed to get it recorded himself; that shortly after the conveyance to the- complainant,■■ in June, 1836, and' in the course- of that summer, Miller received from- Avery the deed from Willard Church, for the purpose of having it recorded in conformity with the- previous agreement of the parties; and that if there- is any defect in- the record' evidence, of the title of Miller to the land, such defect is owing to his neglect to have the deed,- from Church to Maynard, recorded previous- to the sheriff’s sale in May, 1837.
*593It is not necessary to inquire here, whether the verbal agreement made at the time of the conveyance of the land with warranty, by Avery, could of itself be set up as a defence, either at law or in equity, to an action for a breach of the warranty contained in ■ that conveyance. I am inclined to think, however, it could not; and that all such verbal agreements which would be inconsistent with the general covenant of warranty against' all persons, would be considered as merged in that written covenant. It would unquestionably be so merged at law. (Hunt v. Amidon, 4 Hill’s Rep. 345.) And I see no good reason why it should "not have the same effect in a court of'equity, as a mere question of evidence. If it was necessary, therefore, that the deed from W. Church should be recorded in order to protect the complainant’s title against a subsequent conveyance from Church, or a conveyance upon a sale under a subsequent judgment against him, I think Miller might have insisted that Avery should be at the trouble and expense of having the deed from Church to Maynard properly recorded.
But if Miller intended to insist upon his legal rights, under the written covenant of warranty, the proper time to do so was when that deed was delivered to him to be recorded; pursuant to the verbal understanding of the parties which existed at the time of the conveyance of the land by Avery to him. By receiving the deed for the purpose of putting it on record, and without any objection on Iris part that the verbal agreement to do so, which he had previously made, was not binding, he deprived the defendant Avery of the power of putting it on record himself, and thus protecting the title of his grantee. And having by’.his own negligence lost the title to the land, it would be unconscientious for him afterwards to insist upon enforcing his general covenant of warranty against the defendant. The facts stated in the defendant’s answer, therefore, would form a just claim to relief in' equity against Miller, if he should endeavor to enforce his covenant of warranty in an action at law, upon the ground that the title to the land conveyed to him had been lost by not recording the deed within a reasonable time after it was received by him for the purpose of being recorded. *594And what would in this court be a ground for relief against a,n action at law upon the covenant of warranty must, if proved, be a good defence to a bill for relief, against the suit upon the note, because the title to the land has been lost by failing to record the deed from Church to Maynard. ’"
The question, therefore, recurs in this case; does the mere fact that a purchaser of real estate who has a covenant of warranty from the grantor, is sued for the purpose of recovering the premises by persons claiming title paramount to his deed, authorize such grantee to come into the court of chancery for relief against an action at law, for the unpaid purchase money of the premises'? And upon this point, I think the decision of the assistant vice chancellor was right. The appellant’s counsel relies upon a decision of the late Chancellor Kent, upon an ex parte application for an injunction, in the case of Johnson v. Gere, (2 John. Ch. Rep. 546.) If the whole substance of the complainant’s bill, in that case, is stated in the report, it is undoubtedly a case which goes upon all fours with the present, and is entitled to all the weight which a mere ex parte decision of that learned jurist, who made it, ought to receive. I think it is evident, however, that the reporter was under a mistake in the statement of the case, or that the chancellor overlooked the fact that it was not alleged in the bill that the complainants even believed their title to the land was defective. For it cannot be possible that he intended to decide that a mere claim of a paramount title by a third person, and the bringing of a suit upon that claim against the purchaser, was sufficient to authorize this court to stay the vendor, who had warranted the title, from proceeding at law or in equity to collect the unpaid purchase money. If the law was so, any vendee who was "not ready to pay his purchase money when it became due, might make a secret arrangement with some third person to claim the premises and bring an ejectment suit therefor, and thus tie up the vendor from collecting his debt, indefinitely. For, if the vendor should be allowed by the court at law to interfere with the defence of the ejectment suit, so as to get it out of court within a reasonable time, the plaintiff might suo*595mit to a nonsuit and then bring a new action. And such new action, either by the original plaintiff or by a new claimant, would entitle the vendee to a new decree, staying the collection -of the unpaid purchase money, until the final termination of that suit. I concur in the suggestion of the assistant vice chancellor in Banks v. Walker, (3 N. York Leg. Obs. 343,) that the complainant’s bill, in the case of Johnson v. Gere, set out the will of J. M. Pierson, from which it was apparent that his widow had but a life estate in the premises, and that the title which Gere derived under her failed at her death; so that her infant children must succeed in the ejectment suit, which their guardian had commenced in their names, for the recovery of the land conveyed by Gere with warranty. Whether that state of facts would enable the vendee, or his legal representatives, to come into this court for relief, before an actual eviction, where the vendor who had conveyed with warranty, was not only solvent but abundantly able to pay any sum which might be recovered against him in an action at law upon his covenant, is at least doubtful. It is sufficient to say that it has frequently been decided that the mere fact of a failure of title in the vendor affords no sufficient ground for coming into this court for relief; where the purchaser has not been disturbed in his possession, and no suit has been brought against him by the rightful owner of the land. (Bumpus v. Platner, 1 John. Ch. Rep. 218. Woodruff v. Bunce, 9 Paige’s Rep. 443. Withers v. Morrell, 3 Edw. Ch. Rep. 560. Edwards v. Bodine, 26 Wend. Rep. 109.) And it is equally clear that the mere bringing of an ejectment suit against the grantee of lands, by persons claiming to have a title paramount to that of the grantor, without establishing the fact that the plaintiff in the ejectment suit is the real owner of the land, affords no sufficient ground for coming into this court for relief, against an action at law for the recovery of the unpaid purchase money due to tl e vendor of the land. Nor is it a valid defence to a suit in this court, for the foreclosure and satisfaction of a bond and mortgage given for the purchase money upon a sale of the land. That question was correctly decided by the assistant vice chan*596cellor, in Banks v. Walker, (3 New York Leg. Obs. 340.) And he very properly followed that decision in the present case.
The decree appealed from must therefore be affirmed with costs.