*284The opinion of the court was delivered, October 16th, 1871, by
Sharswood, J.It appears from the brief abstract of title given in the paper-book of the plaintiff in error, that Alexander McClure, being seised in fee simple of a farm in Elizabeth township, Allegheny county, by his will, dated February 24th 1803, devised the same to his daughter Margaret, the wife of Francis McClure. William McClure was the owner of a tract of land in Mifflin township. It would seem to have been agreed between Francis and William McClure to make an equal exchange of their properties, and, in pursuance of that agreement, on the 30th of May 1805, mutual deeds of bargain and'sale — each expressed to be in consideration of one thousand pounds — were executed. William McClure conveyed the land in Mifflin township to Francis McClure, and Francis McClure and Margaret, his wife, conveyed the land in Elizabeth township to William McClure. Margaret McClure, in whom the title in fee-simple, as we have seen, was vested, though she executed the deed, did not acknowledge it according to the Act of Assembly of February 24th 1770, 1 Sm. Laws 307; so that her interest did not pass. In consequence of which, after the death of Francis and Margaret McClure, an action of ejectment was instituted by the heirs at law of Margaret against Hezekiah Douthett et al., claiming under William McClure, for the tract in Elizabeth township. That case was twice in this court by writs of error to the District Court, and is reported in 3 Barr 446, and 6 Id. 414. The final judgment was in favor of the heirs of Margaret, and the defendants were evicted from the premises. The plaintiffs in the present ejectment derive their title to the tract thus evicted from William McClure through the defendants in the former suit; and this action was instituted in the court below to recover the tract of land in Mifflin township conveyed by William McClure to Francis McClure. Who the defendant below, Francis McClure is, and how he derived title from Francis McClure the 'original grantee, the paper-book does not inform us. We may assume that he is one of his descendants. Undoubtedly where there is a technical exchange of lands the law annexes not a mere implied covenant of warranty, but an actual warranty with a condition of re-entry, so that if the title to either tract of land turns out to be bad, and the party or his assigns should be afterwards evicted, he or they can recover back the other tract of land which was given in exchange. But to produce this legal consequence it is absolutely necessary that the word exchange — excambium— should be used. No other word can supply its place, however equivalent in signification. Co. Litt. 50 b, 51 b, 384 a. It has resulted from this old and well established rule of law that technical exchanges have been entirely abandoned in modern conveyancing, both English and American. The reason is obvious. It imposes on a purchaser of either tract the burden and risk of examining *285and being satisfied with not only tbe title of tbe land which he purchases but also that of the other tract which was exchanged for it. Hence mutual deeds of bargain and sale with the usual covenants of title are always preferred and adopted. Under these deeds the remedy of either party in case of eviction, is not re-entry upon the land given in exchange, but an action on the covenants to recover his legal damage from the covenantor or his estate.
It is clepr then that the plaintiff had no title at law to the tract' of land in Mifflin township, for which this ejectment was brought. Nor would the depositions of the witnesses, taken on the former trial for the land in Elizabeth township, supposing them to have been competent evidence in this action, nor the facts therein stated, supposing them to have been agreed to as a case stated by them, who were privies in title with the parties here, have been of any advantage to the plaintiffs. They proved indeed a parol agreement, to make an equal exchange of the respective parcels of land in question, but that agreement was consummated, not by a deed of exchange, but by mutual deeds of bargain and sale, each expressed to he for a pecuniary consideration.
Nor is it easy to perceive what equity the plaintiffs have to recover the land in Mifflin. Their remedy, and their sole remedy is upon their covenants of title. No offer was made to show any fraud or mistake, that might lead to a reform of the deeds which were actually executed. The parties were advised and rightly advised to make the exchange in the manner they did, by mutual deeds of bargain and sale, in order to avoid that perpetual cloud, which would have rested upon the title of both tracts, if they had executed a technical deed of exchange. We cannot of course inquire here whether there might not possibly have been an equity in the former action to resist a recovery by the heirs of Margaret McClure of the tract in Elizabeth township, if those heirs were at the same time the heirs of Francis McClure, and had inherited from him the land in Mifflin without at least a reconveyance of the land in Mifflin. No such equity seems to have been set up in that suit, or if it was, it did not avail the defendants. It is too clear .for argument that it gave the plaintiffs no equitable title to recover the land in Mifflin township which is the subject of the present ejectment.
Judgment affirmed.