[McCarty v. Selinsgrove,&c., Railroad Co.]

Junction, to the town of Selinsgrove, and that these subscriptions were not to be of force until they represented an amount fully equal to $20,000. These stipulations were reasonable and proper. The subscribers desire to have the road built to Selinsgrove; for this purpose and none other they will agree to pay their money, and that there may be a reasonable certainty that this design be fulfilled, they stipulate that if the subscriptions do not amount to a figure that will insure this reasonable certainty, then the whole adventure is to be treated as abandoned. Had the company fulfilled the first condition, by building the road to Selinsgrove, the second might be disregarded, for the main design, to wit, the construction of the improvement, being accomplished, the necessity for the second would fall, and the subscriber could not allege a want of consideration for the money which he had agreed to pay. But the company did nothing of the kind; it did not build the road, hence, any one can see that it would be a most inequitable perversion of the agreement should these people be compelled to pay for that which was not embraced in their compact; that is, for the construction of the main line instead of the branch.

It is true these provisions were oral, but the offer was to prove that the defendants, and their co-subscribers refused to put their names to the contract until they were assured, by the president of the company, that they should form part of the terms of that contract and be of the same force as though written therein. This offer brought the proposition within the rule which allows of the introduction of parol evidence to add to or vary the terms of a written contract, for it is clear, that the attempt to enforce the writing, without the oral conditions, was but an attempt to enforce what was not the contract of the parties, and if successful, would be a fraud on the rights of the defendants. In order to prevent a result of this kind the offer should have been admitted.

The third and the fourth assignments, covering as they do, the same subject-matter, may be considered together.

By the contract the subscriptions were payable at such time or times as the company should direct, "but not to be called for faster than ten per cent. a month." As this corporation is made subject to the General Railroad Act of 1849, we must construe the above contract with reference to the provisions of that statute. The 8th section thereof provides that "the capital stock of such company shall be divided into shares of $50 each, and shall be called in and paid at such times and places, and in such proportions and instalments, not, however, exceeding $5 per share in any period of thirty days, as the directors shall require, of which public notice shall be given for at least two weeks next preceding the time or times appointed for that purpose." It does seem, therefore, that the statute contemplates notice, and unless the officers of this corpora6 NORRIS-22

[McCarty v. Selinsgrove, &c., Railroad Co.]

tion may disregard this plain precept, they cannot move until it has been complied with.

It is urged, however, that publication of notice is necessary only when the penalties for non-payment, subsequently provided for, are sought to be enforced, and this reading of the act is supposed to be sustained by the cases of Gray v. The Monongahela Navigation Co., 2 W. & S. 162, and Grubb v. The Mahoning Navigation Co., 2 Harris 306. But these cases are not in point, since the facts involved therein are not similar to those in the case now in hand. In the first there was not only notice by publication, but there was also evidence of personal notice, and the exception was only to the fact that the publication did not set out the full name of the company, an exception purely technical and amounting to nothing in a suit for the price of the stock subscribed. In the second there was no provision in the act of incorporation requiring notice of any kind previously to a suit for the subscriptions; hence, it was held that if the defendant was aggrieved for want of notice he should have pleaded the matter in abatement, but could not avail himself of it on the general issue.

On the other hand, in the case of Sinkler v. The Turnpike Co., 3 P. & W. 149, where the act of incorporation did provide for notice by publication, we have it said by Mr. Justice KENNEDY, that no action could be maintained for the defendant's subscription, nor any part of it, until the managers had fixed the time and had given notice as required by the act.

Authority, however, in the case under review, beyond the statute itself, is not necessary, for there is nothing therein that is in the least degree ambiguous. Notice is just as positively required as are calls and apportionment, and if the latter are necessary, so is the former. This corporation cannot go outside of its charter for its power to sue, and that power, as found within that instrument, must be exercised, if at all, under the conditions therein prescribed. We do not say that the spirit of the act would not be complied with by a personal notice, but we do think that neither the spirit nor letter of the act is complied with when there has been a total neglect of notice of any kind; nor are we disposed, by a forced construction, to abolish, or even relax, a condition which, whilst it fairly protects the subscriber, is not cumbersome to the company.

The exception, covered by the first assignment, taken to the ruling of the court on the offer of the plaintiff to prove by its secretary that the words "and monthly thereafter," were omitted by mistake, in the resolution of February 19th, ordering the call for the stock subscriptions, is not sustained. The learned judge properly said that the object of the evidence was not to impeach the writing as a contract between the parties, but only by the correction of a mistake to make the minutes conform to the fact.

The judgment is reversed, and a new venire is ordered.

Trutt versus Spotts.

1. A. conveyed to B. a lot bounded by streets described upon a plan refer red to in the deed, "together with all the ways, &c.," belonging to said lot. Covenant was brought for an alleged obstruction in the use of the streets! Held, to be the proper form of action.

2. A covenant does not require express words. Any words which show the party asserted in a deed that a matter material to the contract had been done, amount to a covenant that it has been done.

3. Covenant of warranty distinguished.

4. Bellinger v. Burial-ground Society, 10 Barr 135, also distinguished. June 19th 1878. Before AGNEW, C. J., MERCUR, GORDON, PAXSON, WOODWARD and TRUNKEY, JJ. SHARSWOOD, J., absent. Error to the Court of Common Pleas of Union county: Of May Term 1878, No. 154.

This was an action of covenant brought by David Trutt against Benneville Spotts, upon certain clauses of a deed of conveyance. Plea: covenants performed absque hoc.

The facts were as follows: Prior to 1872 Benneville Spotts, being the owner of a considerable tract of land in the borough of Mifflinburg, employed a surveyor to lay out a portion of it in building lots. This was accordingly done. A plan of the "Addition" was prepared by the surveyor, showing the streets and alleys named and the lots numbered, and Mr. Spotts carried on the sale of lots according to this plan. In August 1872, he sold a lot to David Trutt, by a deed containing, inter alia, the following language:

"All that certain messuage and lot of ground situate on the north side of Market street in Spotts's addition to Mifflinburg, marked with number seven (7), adjoining lot number (3) on the west, Cross street on the east, and alley on the north, containing in depth one hundred and twenty-six feet, and in width sixty feet, be the same more or less. It being part of a larger tract of land which Charles Moll, *** for the consideration therein mentioned did convey unto the said Benneville Spotts, who is the proprietor of said addition. Together with all and singular the improvements, ways, waters, water-courses, rights, liberties, privileges, hereditaments and appurtenances whatsoever thereunto belonging, or in any wise appertaining

***"'

The deed also contained a clause of general warranty. Trutt built a house upon his lot and a fence around it, and Spotts having retained possession of all the streets and alleys in his "Addition," having cultivated the remainder of the tract up to the line of Trutt's fence, and having fenced in the whole tract in one general enclosure, brought this action of covenant to recover damages for having been deprived of the free use of the streets, alleys and ways of said "Addition."

The narr. recited textually from the deed the description of the

[Trutt v. Spotts.]

property, the clause conveying "all and singular the improvements, ways, &c.," and continued: "And the said defendant did, by the same decd, covenant to and with the said plaintiff, his heirs and assigns, that he the said defendant, his heirs, executors and administrators would warrant and for ever defend the said premises to the said plaintiff, his heirs and assigns, against him, the said defendant, his heirs and against all and every other person or persons whomsoever lawfully claiming or to claim the same, or any part thereof.

"And the said plaintiff avers that the said defendant hath not opened the streets and alleys mentioned in said 'Spotts's Addition to Mifflinburg,' and hath deprived said plaintiff of the free use of said streets and alleys, and of the right of way, the ways, and other rights and liberties, as in said covenant mentioned, and hath retained the same for his own use and profit and in his own possession.

"And so the plaintiff saith, that the said defendant, though often requested, hath not kept the covenants so by him made as aforesaid, but hath broken the same, &c."

Upon the trial, before Bucher, P. J., the plaintiff offered in evidence his deed from the defendant, for the purpose of showing the covenant on which the suit was brought. The defendant objected, that there was no covenant in the deed to support the action, and the court excluded the evidence, saying:

"There is no covenant in the deed to meet the declaration. There is no covenant whatever, save that of a general warranty. The offer is simply to show that the plaintiff has been, deprived of the right of passage in and out of the streets adjacent to the land described in the deed. There can be no recovery for breach of warranty without proof that the grantee has been ousted by a title paramount. If the plaintiff has been wrongfully deprived of the right of enjoyment of the streets adjacent to the land conveyed, the remedy must be by a different form of action. We sustain the objection and reject the evidence." Exception.

Plaintiff then offered the deed again, in connection with the draft of "Spotts's Addition," to be followed by evidence that the defendant, contrary to the clause of warranty, asserted a superior title to the land conveyed, for the purpose of showing the covenant and breach. Defendant objected because the plot was not attached to the deed nor referred to in it, and because the possession of Spotts or assertion of title in himself could not sustain the action. Evidence rejected. Exception.

The plaintiff offering no further evidence, the court directed a verdict for the defendant, upon which judgment was afterwards entered. This writ of error was thereupon taken, and the rejection of the plaintiff's evidence assigned for error.

[Trutt v. Spotts.]

Samuel H. Orwig, for plaintiff in error.-The declaration was sufficient, the covenant being set out according to its legal effect: 2 Tr. & H. Pract. 32.

The streets and alleys were conveyed to the centre: Cox v. Freedly, 9 Casey 128; and the warranty was of the whole property conveyed: West v. Stewart, 7 Barr. 124; Rawle Cov. 205. Any words in a deed which assert a material thing to have been done make a covenant that it has been done: Christine v. Whitehill, 16 S. & R. 98.

The reference to a plot incorporates it in the deed: Birmingham v. Anderson, 12 Wright 253.

No counsel appeared for defendant in error.

Mr. Justice MERCUR delivered the opinion of the court, October 7th 1878.

All the assignments of error are to the rejection of evidence. They present the same general question. The contention is whether covenant will lie to redress the alleged grievance.

It is a well-established rule of law that a conveyance of lands bounded on a highway gives the grantee a title to the middle of the road, if the grantor had title to it, unless he reserved it, either expressly or by clear implication: Paul v. Carver, 12 Harris 207; Id., 2 Casey 223; Cox v. Freedley, 9 Id. 124.

The defendant in error was the proprietor of the portion of the town in which the lands in question lie. He sold and conveyed, by deed under seal, to the plaintiff, "all that certain messuage and lot of ground situate on the north side of Market street, in Spotts's addition to Mifflinburg marked with number seven, adjoining lot number three on the west; Cross street on the east, and alley on the north *** being part of a larger tract of land conveyed unto the said Benneville Spotts, who is the proprietor of said addition. Together with all and singular the improvements, ways, waters, water-courses, rights, liberties, privileges, hereditaments and appurtenances whatsoever thereunto belonging or in any wise appertaining." This language clearly imports that the streets named did exist; that they were located adjoining the lot conveyed; that they were then open to public use, and that all the privileges and benefits incident to streets were a part of the ways belonging and appertaining to the lot. They are not referred to merely as descriptive of the boundaries, but their actual location is unquestionably averred. It is a substantial part of the contract, and creates a covenant of its truthfulness; Dailey v. Beck's Executors, Brightly's Rep. 107. A covenant does not require any express words. Any words which show the party asserted in a deed, that a matter material to the contract had been done, amounts to a covenant that it has been done: Shep. Touch., Covenant, page 160; Com. Dig., Covenant,