Upon this day the judges delivered their opinions.
Tilghman C. J.As to the first point, I feel no difficulty. The defendant offered evidence of weight, to shew that George Croghan was a trustee for Plummer; and the judge who tried the cause, left the matter to the jury on the evidence, and was well satisfied with the verdict. There can be no reason for a new trial upon that ground.
The second point requires more consideration. It is singular that the construction of words, concerning which there has been a difference of opinion, and which have been introduced into thousands of deeds since the year 1715, should never have been settled by a judicial decision. But such is the case. I am well informed that, at the time of our revolution, it was the opinion of some gentlemen of eminence at the bar, that the words “ grant, bargain, and sell,” created a general warranty, while others of equal character entertained a contrary opinion. It was this diversity of sentiment which I suppose (as I mentioned in the case of Bender v. Fromberger, 4 Dall. 440.) induced the conveyancers of Philadelphia to introduce the clause of special warranty, which is very generally found in deeds in that city. I am aware that in the Lessee of Balliot v. Bowman, before the late C. J. Shippen and Judge Smith in the Circuit Court of Northampton county, May 1802, this very point was brought before the court, on an objection to the competency of a witness who had conveyed the land in dispute, by a deed containing the words “ grant, bargain, sell;” and according to Judge Smith's note of that case, the court said that those words created a warranty “ only against the grantor and “ those claiming under him, or against any act done by the “ grantor;” but in order to avoid all difficulty a release was executed to the witness, so that I do not consider the point as having been solemnly decided.
*99I will consider the act of assembly, then, supposing the question to be undecided. It is enacted “ that in all deeds to ' “ be recorded in pursuance of that act, whereby an estate of “ inheritance in fee simple should be granted to the grantee “ and his heirs, the words grant, bargain, sell, shall be ad- “, judged an express covenant to the grantee his heirs and as- “ signs,-to wit, that the grantor was seized of an indefeasible u estate in fee simple, freed from incumbrances done or suf- “ fered from the grantor, (excepting the rents and services “ due to the lord of the fee) as also for quiet enjoyment “ against the grantor his heirs and assigns, unless limited “ by express words contained in such deed.” The meaning is not clearly expressed; but T take it to be a covenant that the grantor had done no act, nor created any incumbrance, whereby the estate granted by him might be defeated; that the estate was indefeasible as to any act of the grantor. For if it was intended that the covenant should be, that the grantor was seized of an estate absolutely indefeasible, it was improper to add the subsequent words “ freed from incum- “ brances done or suffered by him;” these words instead of adding strength, would only serve to weaken what went before. The words, u seized of an indefeasible estate in fee “ simple,” are to be considered therefore, not as standing alone, but in connexion with the words next following, “ freed from incumbrances done or suffered from the “ grantor.” I am the more convinced that this was the intention of the legislature, by comparing the expressions in this act, with the 30th section of the statute 6th Ann. ch. 33. which contains a provision on the same subject, and was evidently in the eye of the persons who framed our law. The British statute makes use of more words, but the intention is more clearly expressed. It declares that the words grant, bargain and sell, shall amount to a covenant, that the bargainor, notwithstanding any act done by him, was, at the time of the execution of the deed, seized of an indefeasible estate in fee simple &c. Our law seems intended to express the substance of the British statute in fewer words, and has fallen into a degree of obscurity, which is often the consequence of attempting brevity. I can conceive no good reason why our legislature should have wished to carry this implied warranty farther than the British statute did; because it has bad effects to an*100nex to words an arbitrary meaning far more extensive than their usual import, and which must be unknown to all but, professional men. It might be very well to guard against secret acts of the grantor, with which none but himself and those interested in keeping the secret, could be acquainted. As for any further warranty, if it was intended by the parties, it was best to leave them to the usual manner of expressing it in plain terms.
These are my ideas of the construction of this act of assembly, divested of all authority from the opinion of others. But although we are without the authority of an adjudged case, we have the opinions of Chief Justice Shippen and Judge Smith, to which I pay great respect, in the case which I have mentioned. Upon the whole of this case, I am of opinion that the Circuit Court was right in rejecting the motion for a new trial.
Yeates J.The first reason assigned for this appeal, is, that the deposition of Jonathan Plummer was admitted in evidence to the jury. He was examined on the 29th May 1798, by the commissioners appointed on a bill to perpetuate testimony. Having been in the peaceable and quiet possession of the-lands in controversy since 1761, and made many valuable improvements thereon, he mortgaged the same to Henry Heatji on the 25th January 1771, to secure the payment of 114/.-4?. 10d. Virginia currency, with lawful interest. This mortgage, containing the words grant, bargain, sell, to the said Henry Heath and his heirs, in the usual form, was proved at a Virginia court on the 25th August 1777, when that state claimed and exercised jurisdiction in the western parts of Pennsylvania, and was recorded on the same day. It is objected that the witness was interested at the time of his examination, under sec. 6. of the act “ for acknowledging w and recording of deeds,” passed in 1715; and that having granted an estate in fee to the mortgagee, the technical words used therein operated in law, as an express covenant, that he had a good and indefeasible right in the lands conveyed by way of security; and if therefore the sheriff’s vendee should happen to be evicted by an elder and better title, that he would have his remedy over against the mortgagor.
The words of this section are very similar to those used in section 30 of the stat. 6 Ann. c. 35. which are as follow: “ In *101“ all deeds of bargain and sale, hereafter inrolled in pursu- “ anee of this act, whereby any estate of inheritance in fee ' “ simple is limited to the bargainee and his heirs, the words “ grant, bargain and sell, shall amount to, and be construed “ .and adjudged in all courts of judicature, to be express “ covenants to the bargainee his heirs and assigns, from the “ bargainor for himself, his heirs, executors and administra- “ tors, that the bargainor, notwithstanding any act done by u him, was at the time of theexecution of such deed, seized of “ the hereditaments and premises thereby,granted, bargained “ and sold, of an indefeasible estate in fee simple, free from “ all incumbrances, (rents and services due to the lord of “ the fee only excepted) and for quiet enjoyment thereof against the bargainor his heirs and assigns, and all claiming “ under him, unless the same shall be restrained by express “ particular words contained in such deed; and that the “ bargainee, his heirs, executors, administrators, and as- “ signs respectively, shall and may in any action to be “ brought assign a breach, or breaches thereupon, as they “ might dó in case such covenants were expressly inserted “ in such bargain and sale.”
There are some variances between the words of the t; sections, the consideration whereof seems to me at to be immaterial: but I have no doubt of this sectioi^of^wír act being taken from the statute, though the statute verbose.
I have not been fortunate enough to discover any on this branch of the British statute, as to evide^cá? Man v. Ward (a) Lord Hardwicke says the very grant and convey imply a warranty, and covenant for quiet* enjoyment at law; and therefore one could not be examined as a witness to overturn and invalidate the right and title he had granted. In Browning v. Wright (b) Lord Eldon lays it down, that the words grant, bargain, sell, enfeoff, and confirm, import a covenant in law. But in a late case of Frost et al. v. Raymond (c) determined in the Supreme Court of New Tork in 1804, it is abundantly shewn, that though the words grant and enfeoff amount to such covenant in an estate for years, yet to apply them to an estate in fee, is opposed to the whole stream of the book authorities. In that *102case it was adjudged, that the words grant, bargain, sett, alien, and confirm, did not imply a covenant of warranty in a deed, conveying lands in fee simple. The word give amounts to an implied warranty for the life of the feoffor. And so of the word exchange in partition. I thoroughly agree with Judge Livingston, that in practice, every purchaser of lands, who intends to have recourse in case of eviction to the former proprietor, takes care to have inserted in the instrument of conveyance, the necessary covenants for that purpose, thereby ascertaining the precise extent of his liability. In conveyances of real estate, there must always be danger in implying any thing, that is not stipulated in clear and precise terms. This is the safest way of determining the extent of a grantor’s responsibility.
But it is said that the legislature have imparted a degree of efficacy to the words grant, bargain, sell, which they did not possess at common law; and that in grants of estates in fee simple, “they shall be adjudged an express covenant that “ the grantor was seized of an indefeasible estate in fee “ simple, freed from incumbrances done or suffered from “ the grantor, as also for quiet enjoyment against the grantor “ his heirs and assigns, unless limitedby express words con- “ tained in the deed.” The sentence is read, as if the words freed from incumbrances &c. were a distinct covenant from the words preceding it, enlarging the liability of the grantor. But the natural, grammatical sense of the section is, that the expressions freedfrom incumbrances &c., qualify and restrict the operation of the words going before, and the latter clause of quiet enjoyment being confined to the acts of the grantor his heirs and assigns, strongly fortifies this construction. In other words, the provision was intended as a covenant on the part of the grantor, that he had not previously incumbered the lands, and that neither he, his heirs, or assigns, should molest or disturb the grantee. It was remarked during the argument, that a different construction had generally prevailed, which it might be highly inconvenient now to unsettle. We therefore postponed giving any decision on the subject at the last term, in order to have time to consult the elder counsel at the bar. I have personally made inquiry of many of those gentlemen, both in the city and country, and they have uniformly asserted, that as far *103as their experience has gone, the clause in question has received no other construction than a covenant of special warranty, freed from incumbrances; that scriveners have generally used the words grant, bargain, sell, as mere expressions of course; and that though sometimes releases have been executed at bar, previously to offering such grantors as witnesses, it has been done to save time, and preclude all pretext of dispute. I have likewise seen the notes of a trial in- the Circuit Court of Northampton county, on the 19th May 1802, before the late Chief Justice Shippen and Judge Smith, between the lessee of Stephen Balliot and Bernard Bowman, wherein Jacob Seyberling, through whom the defendants claimed by divers mesne conveyances, was offered as a witness to support the title of the lands, and his competence was objected to on the part of the plaintiff, on the ground of the words grant, bargain, sell, being used in his conveyance; but the objection was overruled without difficulty; and the then Chief Justice declared, that those words within his experience had never been deemed to amount to more than a covenant against the vendor and his acts, and those claiming under him. I am therefore of opinion that the deposition of Jonathan Plummer was properly received in evidence, and that the exception went to his credibility, not to his competence.
The other grounds of appeal are, that the verdict for the defendants was against law and evidence. It appears from J udge Smith’s statement of the evidence, that George Croghan claimed a large body7 of land under an Indian grant, and permitted Jonathan Plummer to take possession of a specified parcel thereof, to be paid for at a future day7, agreeably to the judgment of arbitrators, according to its value in an uncultivated state, when Croghan’ should obtain the title. The possession was obtained by Plummer in 1761, with the permission óf Col. Henry Boquet, the commanding officer to the westward, and he made considerable improvements thereon. Croghan afterwards, on the 1st April 1769, procured a special order for 1500 acres of land on the river Ohio, which recited that six families had lived thereon, improving the same since 1762; and in pursuance thereof surveys were made in the month of June following, one of which included the lands in dispute. Iii 1765 Croghan acted *104as agent of Plummer in leasing the land, and paid him the rent. In 1771 Plummer mortgaged the premises before stated to Henry Heath with the knowledge and approbation 0f Croghan, and afterwards sold the same lands to Croghan f°r 300^ sukíect t0 equitable claim of the mortgagee, which Croghan agreed to pay, but no written conveyance was executed. In fact Croghan retained in his hands a part of the purchase money in order to pay the mortgage. A. judgment was obtained in July term 1783 on this mortgage in Westmoreland county, and the lands were sold under a levari facias to .the defendant.
The lessor of the plaintiff claimed under a sale made by the sheriff in 1801 under sundry judgments obtained by Croghan’s creditors against him in 1774.
The question submitted to the jury on the whole evidence was, whether Plummer had such an interest in the lands as he could mortgage, or whether the entire title was in Croghan. The credibility of the parol testimony was wholly submitted to the jury; and they were instructed that if they were satisfied that Plummer was not the tenant of Croghan, and that the latter was trustee of the former, by engaging to take out the legal right for him, that the defendant ought to prevail under all the circumstances of the case; because if the equitable title was in Plummer on the 26 January 1771 and previous thereto, the judgments against Croghan in 1774 could not affect the lands.- But if they found that both the legal and equitable title were always in Croghan, then Plummer could have no estate whatever in the lands, which he could mortgage, and consequently in such case, the plaintiff would be entitled to recover. The jury upon the whole matter have found a verdict for the defendant, and the judge who tried the cause has declared his perfect satisfaction therewith. I can see no cause of dissatisfaction with the charge or the finding of the jury, and on the whole, I am of opinion that the judgment of the Circuit Court should be affirmed.
Brackenridge J.Having been of counsel in this cause, I did not sit upon the trial, though on the circuit with Judge Smith; but as it is now decided, I may express my concurrence. When on the circuit with the late Chief Justice Shippen, I conversed with him with regard to the construction of the act of assembly; and I understood, that since he *105had had any knowledge of the law in Pennsylvania, the construction of the act had been, that the covenant in question was a special warranty.
Judgment affirmed.
3 Atk. 228.
2 Bos. & Pul. 21.
2 Caines 188.