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grantee. Strickler v. Todd. 63 3. If in such subsequent conveyance, a covenant be entered into by the grantee, not to use the water except as it had been used, query, whether an action of covenant lies by the first grantee, as running with the land: but at all events, case will lie against such subsequent grantee for obstructing the water. Ib. 4. In a deed of bargain and sale which states a money consideration, evidence is admissible to show that besides the consideration of money, there was a consideration of advancement to the daughter of the bargainor.
Query, Whether parol evidence) is admissible, to show a consideration contrary to that expressed in a deed of bargain and sale. Hayden v. Mentzer. 329 5. A. conveyed a tract of land of
140 acres 136 perches, to B. in fee, "excepting a small quantity struck off the said tract at the west end by a conditional line." B. entered into possession of the whole, and his title and possession were transferred to several others, two of whom purchased under sheriff's sales of the whole tract, no notice being given or claim made on the part of A. The conditional line was not marked on the ground, nor capable of being ascertained. A., 23 years afterwards, came on the ground, pointed out his part to his vendee, who had 21 acres surveyed, and took a deed for them from A. Held, that A's vendee had no title to the 21 acres.
An exception of " a small quantity struck off a tract by a conditional line," it seems is void for uncertainty, if there is no such conditional line ascertained, or
capable of being ascertained. Stambaugh v. Hollabaugh. 357
See PAYMENT WITH LEAVE.
It is too late to object at the trial, to an answer in a deposition, on the ground that the interrogatory is a leading one. It should be objected to when put, Sticker v. Todd.
See TENANTS IN COMMON. CONDITION, 1. LEGACY, 1. RELEASE, 1.
1. Where a testator orders his land to be divided among several persons in a particular manner, they take under the will when the division is completed, notwithstanding they execute mutual releases. Leek v. Cowley. 176 2. Devise of land and quitrents to testator's son A. during the term of his natural life, and that after the decease of A. the land and quitrents should be equally divided to and amongst all the lawful issue of the said A. or their legal representatives, share and share alike, and to their heirs and assigns. On the death of the testator, A. entered on the lands and suffered a common recovery to the use of himself in fee. Held, that A. took an es tate for life with contingent remainders to the children of A. who were living at A's death, and the children of such as were dead; and by comparison with other parts of the will, that such grandchildren should take only
their respective parents' share; | and that the life estate of A. being forfeited by the recovery, the remainders fell for want of support. Abbot v. Jenkins. 3. Testator devised to his son E. C. two tracts of land to hold to him and his assigns for and during the term of his natural life, he making no waste or destruction of the timber thereupon and paying the testators daughter twenty pounds within two years after his wife's decease; and from and immediately after the decease of E. C. he gave one tract to his two sons J. and D. their heirs and assigns as tenants in common; and the other tract tothe heirs male of the body of E. C. lawfully begotten, and the heirs and assigns of such heirs or heir male for ever, and for want of such heirs male then to the two sons of J. and D. in fee, as tenants in common. E. C, suffered a common recovery. Held, that by virtue of this devise E. C. took an estate tail in the second tract which was barred by the recovery. Carter v. M Michael. 429
I. It seems a deed by a guardian, specially conveying the interests of minors, does not transfer her own right of dower. Before as signment of dower, the widow's grantee cannot maintain ejectment. Jones v. Hollopeter.
See VENDOR AND VENDEE, 1.
1. The return of " served" by the sheriff, on a writ of ejectment,
is prima facie evidence of possession by the defendants, whether they be originally named in the writ or added by the sheriff. Deitrick v. Mathers. 151 A verdict in ejectment, "that the defendant should have the third part of the 41 aeres and 32 perches neat, and if any overplus, it goes to the plaintiff," is too uncertain; and it cannot be cured by the courts' appointing a surveyor to designate the rights of the parties, and rendering judgment thereon. Smith v. Jenks.
In ejectment, if the lease laid in the narr has expired, the enlargement of it is an amendment in matter of form, and it is error under the act of 21st March, 1806, if the court refuse it. Maus's Lesece v. Montgomery.
1. After appearance to a writ of error and argument commenced, the want of an allocatur is no objection. Eckart v. Wilson. 44 2. The court will notice an error not assigned, which plainly appears, where the justice of the case requires it. Anderson's Executors v. Long.
If the opinion of the President of the court below is filed of record, with the reasons, the court above in error, are bound to notice it, though it do not appear to have been filed at the request of either party. Brown v. Cald
4. A party cannot reverse a judgment on an answer of the court below favourable to him, or on an answer to an abstract question.
See CONDITION, 1.
See DEED, 1, 4. WILL, 1. SLAN-
in issue. Anderson's Executors
7. Where the defendant proves
1. Some title or spark of title in
5. An assignment of the cause of
Comparison of hands is evidence
Query, whether an assignment
At all events, a subsequent assign-
ment by his assignee, must be
11. If one party gives evidence of
may rebut such evidence, by proof that the personal proper-| ty was swept away by debts. Nass v. Vanswearingen. 144 12. When a party gives in evidence his books of original entries, kept by another, who is absent from the state, and whose handwriting is proved, the opposite party may give evidence as to the general character for honesty of such absent person. Crouse v. Miller.
the person whose name was used in an application for land in what was then Northumberland, since Westmoreland county, both the grantor and grantee being described as of the city of Philadelphia, diligent search being made for the subscribing witness in Philadelphia, and the handwriting of the grantor being proved, though possession did not accompany the deed, and there was a short adverse possession, allowed to go to the jury,
13. If an exception is taken to the opinion of the court rejecting evi-Query, what is the time after which dence and the same evidence is afterwards admitted, the exception cannot avail the party. 14. A certificate of a notary in a foreign country, of proof before him by two witnesses of a power of attorney, for the sale of lands in Pennsylvania, is not sufficient under the act of 1705. Nor is evidence admissible, in an ejectment by one claiming under such power, that other persons had purchased and held lands in the same place under the power, that the defendant held a lot, not the one in dispute under it; or that the attorney had acknowledged in writing the subsequent revocation of his power, and the appointment of a new attorney by the principal. Griffith v. Black.
a deed accompanied with possession proves itself; and whether 21 years is sufficient. Title being traced to a grantee described in the deed to him, as of city of Philadelphia, a copy of a will alleged to be his, being offered in evidence, in which he describes himself as of London Grove, Chester county, whether he is the same person is a question for the jury. The possession of the deed by his devisees is some evidence that he is. M'Gennis v. Allison. 197
15. The admission or rejection of a witness offered after the evidence has been concluded, and counsel have commenced speaking, is a matter of discretion with the court, and is not a subject of error. Frederick v. Gray.
Parol evidence may be given to show that a mistake was made in the affidavit of an assessor filed in the office. Ib. 19. Parol evidence is admissible to prove a long practice in a county for a sheriff to sell on a venditioni exponas after the return day, and such sale is valid, when supported by a long practice. Blythe v. Richards.
20. Where it is proved that a fieri facias and venditioni existed, and are lost, the execution docket of the Court of Common Pleas is evidence to prove their contents, and the proceedings had upon them. Buchanan v. Moore. 275
16. If a party produce a letter in
Where the sheriff sold the property of A. and B. as “200 acres of arable land, more or less, in Newton township," and A. and B.
had two adjoining tracts there, | Evidence is not admissible to show
the general character of a wit-
one of 114 acres and allowance,
given to him to produce it.
are evidence as to boundary: but
If the defendant give in evidence a
25. If the debtor assign over to
Where a witness is contradict-
A certified copy of a survey
But if the part obliterated, was