The opinion of the court was delivered by
Kennedy, J.Each of the errors assigned in this, case present» the same question; and will therefore be considered together as but one.
It is contended by the counsel for the plaintiff, thatthe testimony ought not to have been admitted; because it wept to alter, change the nature of, and contradict the bond upon which the plaintiffs found their claim; that no parol evidence ought to have been received of this character. To judge fairly of this matter, it is necessary to look at the endorsements upon the bond, as well as the face of the bond itself. These endorsements having been made at .the same time with the bond, between the same parties, and under the same assignment, are to be considered as parts of the bond, and all parts of the same transaction; and further, any agreement previously entered into between the parties, and therein referred to, must also be considered as part of the same transaction; whether reduced to writing or not. If this were not to be the case, it would deprive one of the parties of the benefit of an agreement entered into and well'understood by both; which in effect.would be a fraud that the law will not sanction. The first endorsement on the bond states that the bond was given for the taxes and costs which had been assessed and had accrued upon two hundred and seventy-five tracts of land lying in Venango and Warren counties, which had been sold on account of these taxes andjeosts, to two of the defendants, on the 23d day of December, 1818, in pursuance of an agreement betioeen the parties to the bond. What this agreement was, in its various terms and conditions, does not appear in the bond or either of the endorsements; but it is expressly referred to. Why is it referred to? Is it not plainly for the purpose of regulating and controlling the effect of the bond? The reference that is thu3 made'in the endorsement, to the agreement made previously; between the same parties, in respect to the sale and purchase • of the lands, is equivalent to a written agreement between them, that that previous agreement, relating to the purchase of the lands should be considered and made part of the bond itself; for the purpose of di*127rectlng and restricting its operation and limiting the liability of the defendants under it. If such a clause had been formally introduced, and set out in as many words as I have here repeated it, who could doubt for a moment, but thatparol testimony ought to be received, to prove what the agreement relating to the purchase of the lands was; when it appeared that the agreement itself was a parol one? Why is it that parol evidence shall not be received to alter, add to, diminish, vary or contradict a written agreement? Is it not for this reason, that where parties to an agreement have had it committed to writing, it must be presumed that it was done for the greater certainty, as well in shewing what the agreement was, as in preserving the evidence of it, and that these objects can only be attained by putting fully and explicitly into the writing every thing that was agreed on? This I consider the foundation of the rule that excludes parol evidence in such cases. But if it appear in the written agreement itself, that all and every thing which has been agreed on between the parties, was not put into it: and that instead of inserting it. a reference is made to it, as in this case, then the reason of the rule does not exist; and of course it ought not to to be applied.
Again it was argued, that if the parol evidence objected to, might have been admitted against Venango county, it was incompetent as against Warren county, which is the real plaintiff and party now interested. I can perceive no reason for this distinction. It is a principle too well established in this state to admit of any doubt, that the assignee of a bond takes it subject to every equity and objection which the obligor or obligors may be able to make against the payment of it. But in' this case, if the commissioners of Warren county did not know before taking an assignment of the bond, every thing that has been made known to them since, it was exclusively their own fault and negligence; because the endorsement on the bond was sufficient to inform them, that there was an agreement between the parties to it, that might have a very important bearing in regard to the payment of it. This however is not all; for part of the evidence objected to and admitted went to shew most clearly, that they had full information of all the circumstances and agreements between the parties to the bond, before they took the assignment of it; and expressly agreed to take it subject thereto.
In the last place, it has been said, that the defendants ought to be estopped from setting up the defence, to establish which, the parol evidence was offered; because that they, since the giving of the bond, have claimed and received the twenty-five per cent, paid in upon the amount of the sales of those tracts by the owners,, in redeeming them. That in doing this, they have disclaimed being purchasers of the lands for the use of the county, and have *128thereby taken and assumed upon themselves the character of pur-4 chasers, for their own use and benefit. Admit that this oug-h't to be the effect of their receiving the twenty-five per cent.-, Still it would not have been a good ground for rejecting the parol evidence,the admission of which is complained of as error. The counsel for the plaintiff below, in order to have availed himself of this ground of defence, ought, after the admission of the evidence, to’ nave requested the court to. charge the jury, that if they believed the facts to" be so, as the plaintiff in this particular alleged they were, that then they ought to find a verdict generally in favor of the plaintiffs, for the balance due on the bond. If, however, it was a part of the original agreement, that the defendants were to have this twenty-five per cent., I do not see how their demanding and receiving it could have any such effect as is contended for. If they had no right to claim it by their agreement, the commissioners ought not to have permitted them to receive it, or to get a credit for it. If nothing was said about it in the agreement, I would not suppose that they had any right to it; because they stood in the character of trustees for the county, and had no right to claim any thing beyond what was expressly provided by the terms of the agreement. But as it is said to have been allowed them without objection, it may therefore be presumed that they were entitled to it by their agreement.
Another ground taken by the counsel, why the testimony ought not to have been taken, was, if l understood it correctly, that it went to establish as a defence, a transaction which was repugnant to the spirit and provisions of the acts of assembly authorizing the sale of unseated lands for the payment off taxes; that by these acts the owners of such lands, in case any otherthan the county becomes the purchaser or purchasers of them, (a'nd the county is only permitted to buy in cases where the land is' not bid up to the amount of taxes and costs upon it,) the owners are allowed only two years to redeem in, and must, if they do redeem, pay twenty-five per cent, upon the amount for which the land was sold; but where the county, for want of buyers, is compelled to purchase, the owners are allowed five years to redeem in, by paying the amount of taxes and costs with six per cent, interest thereonr that the assignment was a fraud upon the owners of these unseated lands, and intended to depi’ive them of the benefit of the five years to redeem in, and to compel them to pay twenty-five per cent, upon the amount of the sales, which was more than the amount the taxes and costs would have been, although the county was in reality, as the defendants allege, the purchaser of the lands. I do not see' any réason for rejecting the evidence, because it proved that the bond was given under an agreement entered into between the defendants and the obligees in contravention to these acts of assembly. The only *129effect which this could have, if any at all, would have been to have avoided the bond as well as the agreement and arrangement under which it was given. This, however, would defeat the plaintiffs entirely ; but it is not claimed by tire defendants;
Judgment affirmed*