Williams, Ch. J.
It appeared that Kingsley, the cove-[293]*293nantor in the original agreement, had contracted to receive certain goods of the plaintiff, and to convey to him lands own-. ed by himself or Clark, another defendant, in the city of Buffalo]; and for the purpose of shewing that he had performed such contract, he offered in evidence deeds, with the usual covenants of seisin and warranty, of certain lands in said city, to Clark, without any evidence that the grantors or Clark had any possession of said lands, or any other evidence tending to shew title, except that said lands were pointed out by said Clark, and designated to the appraisers, to be appraised under said contract. This evidence having been received without objection, the plaintiff claimed, that the defendants had failed to shew any title to these lands. The defendants claimed, that this was prima facie evidence of title in Clark ; and that so the jury ought to be told. But the court submitted the question of fact to the jury, whether the defendants had shewn any title to said lands.
The defendants now claim, that the exhibition of these deeds to Clark, accompanied with his claim to the land, and pointing out the same to the appraisers, is such evidence of title in him, that a new trial should be granted, because the judge did not instruct the jury, that it was prima facie evidence of title. No authority is brought in support of this claim ; and we know of none which will sustain it. Indeed, the exhibition of a deed from one who appears to be an entire stranger to the estate, not having the lowest evidence of title, the possession of the property, only shews, that the party has a right from one who claims title, and who thereby conveys but a naked claim; and the fact that one ef the defendants pointed it out to the appraisers for appraisal, only shews, that he claimed the property ; but this certainly furnishes no evidence of any thing more. It proves neither possession, nor the right of possession, nor the right to property. And it is laid down in elementary writers, that a deed from a person shewing neither title nor possession, of itself, would have no effect; for its force and effect depends entirely upon its con-nexion with the acts of ownership and possession ; and proof of the execution of deeds, by parties wholly unconnected with the estate, would avail nothing to prove a title. 1 Stark. Evid. 325. And in Pennsylvania, it has been expressly decided, that such a deed is not evidence, unless relevant; and that it [294]*294cannot be relevant, unless the grantor has some right. Lessee Peters v. Condron, 2 Serg. & Rawle, 84. Kennedy v. Bogert & al., 7 Serg. & Rawle, 97.
We think that the defendants shewed no evidence of title to these lands ; and they, therefore, cannot complain of the charge of the court in leaving this a question of fact to the jury.
The plaintiff offered evidence to prove, that when the lands in Buffalo were appraised, it was agreed and understood, by the parties, that they were subject to the lien of a judgment for the amount of 20,000 dollars, confessed by a former owner. To meet this, the defendants offered evidence to prove, that said judgment-creditor had confessed, that the judgment was security only for indoisements ; and that no more than 1250 dollars remained due thereon. This evidence was admitted without objection ; but the court was called upon to say to the jury, that only that sum remained due thereon ; which it refused to do. And under this objection, it is now claimed, that the admission of Kingsley that there was an incumbrance of 20,000 dollars, could not be given in evidence, but the record should have been produced. Kingsley was the man, who offered this land in payment; and by the terms of the contract, it was to be appraised subject to the incumbrances. What those incumbrances were, ought to have been known to the party who offered the lands; and his admission with respect to them was certainly proper evidence in the case. But were it otherwise, it was not objected to, on the trial ; nor is it made a ground of complaint in this motion.
But it is urged, that if Kingsley's admissions were evidence of the amount of the lien, the declarations of the judgment-creditor must also be admissible, to shew that amount. There is, however, an important distinction in the cases. The one is the admission of the party upon the record, made for the very purposes of a valuation of this property ; the other, the admission of a person neither party nor privy to this suit, and who, for aught that appears, might have been a witness in the cause. And as presumptive evidence is not sufficient to shew a discharge of a lien existing upon lands, (3 Stark. Ev. 1611. Barnwell v. Harris, 1 Taunt. 430.) we should doubt whether this lien could be considered as removed, by the parol declarations of the judgment creditor. We do not feel called upon, however, to express any opinion upon that subject; be[295]*295cause this evidence was suffered to go to the jury, and the court was not bound to give them an opinion as to the weight of this evidence.
Again, it was claimed, that if the property in Buffalo, owned and offered by the defendants under this contract, was not sufficient to pay or satisfy the claim of the plaintiff; yet the court should have charged the jury, that the plaintiff was bound to receive what was so owned and offered, at its appraised value, in part satisfaction of his claim. The court are not apprised upon which of the issues joined in this cause the defendants suppose this opinion should have been given. We must, therefore, briefly examine each of them.
In the first plea, it is alleged, that Clark owned real estate in Buffalo to a much greater amount than the plaintiff’s claim ; but that the plaintiff refused to select any lots, or perform on his part; and that Kingsley has done and performed, and ever has been ready to do and perform, all he was obliged to do and perform under said contract. Now, as in this plea it is not averred, that the defendants ever tendered to the plaintiff a deed of any lands whatever, we see nothing in this issue, which called for the expression of any opinion by the court upon this subject. The claim was, that Clark had a much greater estate than sufficient to pay the plaintiff; not that he offered to pay a part in real estate and the rest in money.
In both the 2nd and 3rd pleas, the defendants aver, that the plaintiff selected certain lands out of the city of Buffalo, owned by said Clark, which were appraised at 6,935 dollars over the incumbrance, of which Clark delivered to the plaintiff a good and sufficient deed, and the plaintiffs accepted the same, in part payment, (as averred in the 2nd plea,) and in payment, (as averred in the 3rd plea,) of what was due to him for said screws, &c. Upon these issues no question could have arisen whether the plaintiff was bound to accept part in lands and part in money ; because the issues tendered were that he had actually accepted part. Of course, the question whether he was bound to have done this, could not have been made.
If we take a more general view of the subject, we shall arrive at the same result. Kingsley contracts to pay for the goods he receives of the plaintiff, by lands owned by himself or Clark in Buffalo,
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Williams, Ch. J.
It appeared that Kingsley, the cove-[293]*293nantor in the original agreement, had contracted to receive certain goods of the plaintiff, and to convey to him lands own-. ed by himself or Clark, another defendant, in the city of Buffalo]; and for the purpose of shewing that he had performed such contract, he offered in evidence deeds, with the usual covenants of seisin and warranty, of certain lands in said city, to Clark, without any evidence that the grantors or Clark had any possession of said lands, or any other evidence tending to shew title, except that said lands were pointed out by said Clark, and designated to the appraisers, to be appraised under said contract. This evidence having been received without objection, the plaintiff claimed, that the defendants had failed to shew any title to these lands. The defendants claimed, that this was prima facie evidence of title in Clark ; and that so the jury ought to be told. But the court submitted the question of fact to the jury, whether the defendants had shewn any title to said lands.
The defendants now claim, that the exhibition of these deeds to Clark, accompanied with his claim to the land, and pointing out the same to the appraisers, is such evidence of title in him, that a new trial should be granted, because the judge did not instruct the jury, that it was prima facie evidence of title. No authority is brought in support of this claim ; and we know of none which will sustain it. Indeed, the exhibition of a deed from one who appears to be an entire stranger to the estate, not having the lowest evidence of title, the possession of the property, only shews, that the party has a right from one who claims title, and who thereby conveys but a naked claim; and the fact that one ef the defendants pointed it out to the appraisers for appraisal, only shews, that he claimed the property ; but this certainly furnishes no evidence of any thing more. It proves neither possession, nor the right of possession, nor the right to property. And it is laid down in elementary writers, that a deed from a person shewing neither title nor possession, of itself, would have no effect; for its force and effect depends entirely upon its con-nexion with the acts of ownership and possession ; and proof of the execution of deeds, by parties wholly unconnected with the estate, would avail nothing to prove a title. 1 Stark. Evid. 325. And in Pennsylvania, it has been expressly decided, that such a deed is not evidence, unless relevant; and that it [294]*294cannot be relevant, unless the grantor has some right. Lessee Peters v. Condron, 2 Serg. & Rawle, 84. Kennedy v. Bogert & al., 7 Serg. & Rawle, 97.
We think that the defendants shewed no evidence of title to these lands ; and they, therefore, cannot complain of the charge of the court in leaving this a question of fact to the jury.
The plaintiff offered evidence to prove, that when the lands in Buffalo were appraised, it was agreed and understood, by the parties, that they were subject to the lien of a judgment for the amount of 20,000 dollars, confessed by a former owner. To meet this, the defendants offered evidence to prove, that said judgment-creditor had confessed, that the judgment was security only for indoisements ; and that no more than 1250 dollars remained due thereon. This evidence was admitted without objection ; but the court was called upon to say to the jury, that only that sum remained due thereon ; which it refused to do. And under this objection, it is now claimed, that the admission of Kingsley that there was an incumbrance of 20,000 dollars, could not be given in evidence, but the record should have been produced. Kingsley was the man, who offered this land in payment; and by the terms of the contract, it was to be appraised subject to the incumbrances. What those incumbrances were, ought to have been known to the party who offered the lands; and his admission with respect to them was certainly proper evidence in the case. But were it otherwise, it was not objected to, on the trial ; nor is it made a ground of complaint in this motion.
But it is urged, that if Kingsley's admissions were evidence of the amount of the lien, the declarations of the judgment-creditor must also be admissible, to shew that amount. There is, however, an important distinction in the cases. The one is the admission of the party upon the record, made for the very purposes of a valuation of this property ; the other, the admission of a person neither party nor privy to this suit, and who, for aught that appears, might have been a witness in the cause. And as presumptive evidence is not sufficient to shew a discharge of a lien existing upon lands, (3 Stark. Ev. 1611. Barnwell v. Harris, 1 Taunt. 430.) we should doubt whether this lien could be considered as removed, by the parol declarations of the judgment creditor. We do not feel called upon, however, to express any opinion upon that subject; be[295]*295cause this evidence was suffered to go to the jury, and the court was not bound to give them an opinion as to the weight of this evidence.
Again, it was claimed, that if the property in Buffalo, owned and offered by the defendants under this contract, was not sufficient to pay or satisfy the claim of the plaintiff; yet the court should have charged the jury, that the plaintiff was bound to receive what was so owned and offered, at its appraised value, in part satisfaction of his claim. The court are not apprised upon which of the issues joined in this cause the defendants suppose this opinion should have been given. We must, therefore, briefly examine each of them.
In the first plea, it is alleged, that Clark owned real estate in Buffalo to a much greater amount than the plaintiff’s claim ; but that the plaintiff refused to select any lots, or perform on his part; and that Kingsley has done and performed, and ever has been ready to do and perform, all he was obliged to do and perform under said contract. Now, as in this plea it is not averred, that the defendants ever tendered to the plaintiff a deed of any lands whatever, we see nothing in this issue, which called for the expression of any opinion by the court upon this subject. The claim was, that Clark had a much greater estate than sufficient to pay the plaintiff; not that he offered to pay a part in real estate and the rest in money.
In both the 2nd and 3rd pleas, the defendants aver, that the plaintiff selected certain lands out of the city of Buffalo, owned by said Clark, which were appraised at 6,935 dollars over the incumbrance, of which Clark delivered to the plaintiff a good and sufficient deed, and the plaintiffs accepted the same, in part payment, (as averred in the 2nd plea,) and in payment, (as averred in the 3rd plea,) of what was due to him for said screws, &c. Upon these issues no question could have arisen whether the plaintiff was bound to accept part in lands and part in money ; because the issues tendered were that he had actually accepted part. Of course, the question whether he was bound to have done this, could not have been made.
If we take a more general view of the subject, we shall arrive at the same result. Kingsley contracts to pay for the goods he receives of the plaintiff, by lands owned by himself or Clark in Buffalo, provided they own any such lands. If they shall not own any such lands in Buffalo, at the time [296]*296sPec^ie(^ tbeY promise to pay money for these articles. Now, without determining whether this contract falls within the principle of the cases cited by the plaintiff’s counsel, we are of 0pjnj0U that the defendants have not done what they ought to have done, if the construction of this contract is such as they claim. They say, they might have paid part in lands, and part in money ; but the jury have found, that they have not paid all or even part in lands. But they say, they were ready and willing to do it. Why, then, did they not do it ? Because the plaintiff would not select his land. But if Kingsley had a right, by his contract, to pay part only in lands, if he or Clark had not lands enough to pay the whole, no selection could have been made. The plaintiff must take such as remained : and it was the defendants’ duty to have conveyed them.
Is it said, the plaintiff would do nothing as to the appraisal? If the parties did not agree as to the value, it was to be settled by appraisers selected in the contract. The defendants, then, had only to call them out, and to shew them the lands, and get their opinion, and make and tender a deed of the lands to the plaintiff, and the balance in cash. Having done this, they would have done all they could have done. Not having done this, they have omitted to do what they might have done, and what they ought to have done; and they may as well say, that the plaintiff cannot recover the balance of money which may be due, because they wTere willing and ready to pay it, as to say that he cannot recover the value of the lands, which it was their duty to tender to him ; unless they were prevented from making that tender, by some act of the plaintiff, or some neglect of his. This ground of objection, then, must fail.
Another objection of a different character, was made. The contract provides, that the value of the plaintiff’s goods was to be determined, by the prices put on similar articles, sold by Parker, Wilson & Co., as delivered by them, during the last six months. To prove what that price was, the plaintiff read in evidence bills of such articles, made out by Parker, Wilson & Co., with the prices carried out, in the usual form, accompanied with evidence that before any thing had been done with reference to the appraisal and conveyance of the lands, the plaintiff had exhibited said bills to said Kingsley, one of the [297]*297defendants, who agreed that said bills were correct; which evidence was received without objection. But the claimed in the argument, that this evidence could not affect Clark and Mansfield, the sureties. The judge, however, held, that as regarded this case, all the defendants must be considered as^principals.
It has not been contended, that this evidence was not proper, so far as it regarded Kingsley; but it was said, it Could not affect the sureties; that Kingsley having entered into this contract, at a subsequent time Clark and Mansfield unite with him in a bond, that he shall perform it; that they are only sureties that Kingsley shall perform his contract and pay for the goods he receives, in the manner and by the rule there specified ; and that no evidence is adduced of prices according to the previous sales of Parker, Wilson &• Co.; and that a new rule is now introduced, by Kingsley, of estimating the value, by which the defendants are to be charged in a different manner from that to which they agreed. By the bond, the defendants all agree, that Kingsley shall perform his contract ; that is, that he shall pay for the goods the stipulated prices, to be ascertained by the sales of Parker, Wilson & Co. How can those sales be known ? They might have been proved, by the testimony of Parker, Wilson & Co. That was not adduced ; but bills of goods purporting to be sold by them were exhibited to Kingsley, as evidence of those prices, and by him admitted to be correct: and this is offered to shew what the plaintiff should be allowed for his goods. No new contract, then, is offered to be proved ; but the object of the evidence was to shew, that the terms of the former contract had been complied with. No better evidence could have been had of the prices of Parker, Wilson & Co., than théir bills, if those bills were properly proved. And the admissions of a party to the contract and a defendant in the cause, and the person upon whom ultimately the whole responsibility must fall, was certainly proper evidence in the case; and in the absence of other evidence, must have been sufficient, against one of the defendants, to entitle the plaintiff to a verdict as against him. But how can the plaintiff obtain this verdict, if the evidence is not to operate against all ? We will suppose there is no other evidence of the price of the goods, and this is not to affect the sureties; is the plaintiff to obtain a verdict [298]*298against the principal for the value of the goods, and a verdict for nominal damages only, against the sureties, or a verdict in their favour ?
jn an ',action upon a joint contract, proved to have been jointly executed, we know of but one rule of damages, as it respects all the defendants. If the defendants’ claim is correct, the consequence must be, that no recovery can be had against Kingsley, any more than against the other defendants, as they might be affected by it, and thus the admissions of a party could not operate against himself. We understand the law to be so that where two or more persons sign a note or bond jointly, the admissions or declarations of one may, and ordinarily must, affect the other. Such has been the course of decisions with regard to the statute of limitations ; and we know of no principle which will exempt a surety from this rule, if he connects himself in the same note or bond with his principal, and is sued with him.
But even where the principal has been sued alone, and a judgment rendered against him, that judgment is sufficient evidence in an action against the surety, io shew a right in the creditor to recover of the surety upon his bond. Willey v. Paulk & al. 6 Conn. Rep. 74. And yet that judgment may have been obtained merely upon the admissions of the principal; and whether the suit is first brought against the original debtor alone, or against him and his sureties, the hardship is the same, and we think the law is the same. We concur entirely with the judge at the circuit, that for this purpose, all are principals. Were authority necessary, we think the recent case of Lysaght v. Walker, 5 Bligh, N. S. 1., would be sufficient, where it was held, that an account delivered by a principal, charging himself, is evidence against his sureties.
It seems, also, to be objected to the charge of the court, that they cautioned the jury against being influenced by considerations addressed to them arising from the circumstance that the loss must fall upon one of the defendants only, who was a mere surety. Where a person stands in the relation of a surety, his contract is to be construed strictly, and is not to be extended beyond the fair scope of its terms. Miller v. Stewart & al., 9 Wheat. 680. But when the case is brought within the terms of the contract, we know of no principle of law or justice, [299]*299which will authorize the triers to surrender their convictions to the supposed hardship of the case. Justice, as well as law, requires, that he who has assumed an obligation for another, should faithfully fulfil it; and although as men, jurors may sympathize with those who suffer, yet as honest men, bound by oath to administer judgment according to law and evidence, they were properly cautioned, by the presiding judge, against the appeal made to their feelings, by the counsel for the defendants.
Upon the whole, we see no cause for a new trial.
In this opinion the other Judges concurred.
New trial not to be granted.