The opinion of the court was delivered, January 7th 1867, by
Strong, J.
— Of the deed from Garner to Grove, it is needless to say more than that it was a conveyance of a corporeal hereditament, and that it passed, in fee simple, the entire ownership of the iron-ore in the land described, if such an estate was in the grantor when the deed was made. This is not to be doubted with Caldwell v. Fulton before us. But Garner had made a grant to Irwin before his deed to Grove, not, indeed, as we think, a grant of a corporeal interest, but a grant of a right to take ore from the land. This grant was recorded before the conveyance to Grove, and the defendant claims under it. If it is to be treated as a valid and subsisting grant, it justifies the act of the defendant of which the plaintiff complains. But the plaintiff assails its validity on several grounds. The first is, that it was void at law, as an act of Irwin, because it was not signed and sealed by him, or by his agent duly authorized, and being void as to him it was void also as an act of Garner, for want of mutuality. The instrument, upon its face, declares that Garner thereby sells to Irwin the right described, to wit, the right to mine and take ore from the land for the consideration of twenty-five cents per ton agreed to be paid by Irwin, and it is signed and sealed by Garner. It is also signed and sealed “William Irwin [l. s.] by agent, Miles McHugh.” No sealed authority is shown, however, for McHugh’s action, nor is Irwin shown to have adopted the seal which was affixed, or to have ratified the sealing by any sealed instrument, though there is evidence that he accepted the contract as made. It-must be taken, therefore, that the deed is not a deed of Irwin. None of the covenants which it contains are his cove, nants. Yet it does not necessarily follow from this that the contract between the parties to it was not mutual. If Irwin accepted the grant, he accepted it with its expressed conditions, and the contract became binding upon him to precisely the same extent, as it would have been binding if he had personally signed and sealed the instrument. The mode of enforcing his obligations is different, but the duty is the same. It is assuredly plain law that [516]*516if a party, who has not put his name to a written eontract, accepts it when signed by the other party, it binds him the same as if he had signed it. Even mutual executory agreements are held binding upon both parties, though one may have signed and sealed, and the other signed but not sealed, though the agreements contain the words “ witness the hands and seals of the parties,” thus manifesting an intention that both should seal. The legal principle that contracts must be mutual, that they must bind both parties or neither, does not then mean that in every case each party must have the same remedy for a breach by the other. Covenant may lie against one, when only assumpsit can be maintained against the other. Nor does the principle mean that when a contract is written each party .must sign it. The engagement of one may be in writing, and that of the other rest in parol, even when the contract is wholly executory. It is true that when a contract consists of mutual promises, both parties must be bound, or neither is ; but in no case, when the consideration is a covenant or a promise, is the form of the undertaking material. It is its substance. If then there were no other considerations, it would be impossible to hold that Garner was not bound by his grant to Irwin, because the contract was not mutual. McHugh was authorized to procure leases for Irwin, though not authorized to seal them. He procured this from Garner, and Irwin accepted it, had it put upon record by his direction or with his sanction, and thus he became liable to perform all that the instrument stipulated he should. Under these circumstances it cannot be said there was no mutuality in the contract.
But there is another view of the case which relieves it from all difficulty on this point. Want of mutuality is no defence to either party, except in cases of executory contracts. It has no applicability to an executed bargain. There are many where the obligation is all upon one party. As to one, the obligation was fulfilled, the contract was executed when it was made. As to the other party it remains executory. A consideration may be either something done, or something to be done, or a promise itself. When it is something already done, it is idle to talk of want of mutuality. That is to be considered only when the obligations of both parties are future. Such was the case of Bellas v. Hays, 5 S. & R. 427, so much pressed upon our attention in the argument. The agreement was wholly executoryj upon both sides.
Mutuality of obligation is considered, perhaps, more frequently in courts of equity than in those of law. In bills to enforce the specific performance of contracts, which of course have to do with executory agreements, it is a constant inquiry what equities the defendant has against the complainant and a chancellor will not enforce specifically a contract that is one-sided. But he will [517]*517interfere at the suit of a complainant who discharged his part of the contract, before the undertaking of the defendant was made, or contemporaneously therewith. Unquestionably, if a deed be made to a married woman, or to an infant, and a note be taken for the purchase-money, the deed is not void though the note be irrecoverable. It will be no answer to a demand for the subject of the deed to say that the contract was not mutually obligatory. That would do, if the contract was executory upon both sides, for then equity might interfere. But neither courts of law nor of equity interfere with executed contracts. They may be undone for fraud, but not for want of mutuality. Much less are they annulled because the consideration may prove to be not formally what was expected, though substantially the -same.
It needs but a reading of the instrument to show that the contract between Garner and Irwin was an executed one, on the part of Garner. It is an immediate conveyance of the right to mine, take and carry away the iron-ore on and in the land of Garner for a consideration mentioned. It is not an agreement for a future conveyance. Garner sells in words de prmenti. He has nothing more to do. He undertakes nothing more. He signs and seals the instrument as evidence of what he had done, not of what' he had to do. In the strictest sense, therefore, the contract was executed as to him, and the subject of the grant passed out of him the instant he signed the deed, and it was accepted by Irwin. The grant was not, then, void for want of mutuality in the contract.
It is next objected that the agreement being void at law, it could only acquire validity in equity, through subsequent ratification by both Gamer and Irwin, and that a chancellor would not enforce it under the circumstances of the case. We are not prepared to admit that an instrument executed in the name of one of the contracting parties, but without any authority in the agent who fexecuted it, is good only in equity, if it be duly and formally ratified by the party, whose name was put to it without authority. But it is unnecessary to discuss this question, for we have shown that Garner’s grant was not void at law, if it was accepted by Irwin, and that it was accepted the verdict establishes. The rights of the parties are rights at law, and not within the cognisance of a court of equity. If Irwin had ratified the contract by a sealed instrument it would have become his deed, and he would have been answerable for a breach of its covenants in an action of covenant.
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The opinion of the court was delivered, January 7th 1867, by
Strong, J.
— Of the deed from Garner to Grove, it is needless to say more than that it was a conveyance of a corporeal hereditament, and that it passed, in fee simple, the entire ownership of the iron-ore in the land described, if such an estate was in the grantor when the deed was made. This is not to be doubted with Caldwell v. Fulton before us. But Garner had made a grant to Irwin before his deed to Grove, not, indeed, as we think, a grant of a corporeal interest, but a grant of a right to take ore from the land. This grant was recorded before the conveyance to Grove, and the defendant claims under it. If it is to be treated as a valid and subsisting grant, it justifies the act of the defendant of which the plaintiff complains. But the plaintiff assails its validity on several grounds. The first is, that it was void at law, as an act of Irwin, because it was not signed and sealed by him, or by his agent duly authorized, and being void as to him it was void also as an act of Garner, for want of mutuality. The instrument, upon its face, declares that Garner thereby sells to Irwin the right described, to wit, the right to mine and take ore from the land for the consideration of twenty-five cents per ton agreed to be paid by Irwin, and it is signed and sealed by Garner. It is also signed and sealed “William Irwin [l. s.] by agent, Miles McHugh.” No sealed authority is shown, however, for McHugh’s action, nor is Irwin shown to have adopted the seal which was affixed, or to have ratified the sealing by any sealed instrument, though there is evidence that he accepted the contract as made. It-must be taken, therefore, that the deed is not a deed of Irwin. None of the covenants which it contains are his cove, nants. Yet it does not necessarily follow from this that the contract between the parties to it was not mutual. If Irwin accepted the grant, he accepted it with its expressed conditions, and the contract became binding upon him to precisely the same extent, as it would have been binding if he had personally signed and sealed the instrument. The mode of enforcing his obligations is different, but the duty is the same. It is assuredly plain law that [516]*516if a party, who has not put his name to a written eontract, accepts it when signed by the other party, it binds him the same as if he had signed it. Even mutual executory agreements are held binding upon both parties, though one may have signed and sealed, and the other signed but not sealed, though the agreements contain the words “ witness the hands and seals of the parties,” thus manifesting an intention that both should seal. The legal principle that contracts must be mutual, that they must bind both parties or neither, does not then mean that in every case each party must have the same remedy for a breach by the other. Covenant may lie against one, when only assumpsit can be maintained against the other. Nor does the principle mean that when a contract is written each party .must sign it. The engagement of one may be in writing, and that of the other rest in parol, even when the contract is wholly executory. It is true that when a contract consists of mutual promises, both parties must be bound, or neither is ; but in no case, when the consideration is a covenant or a promise, is the form of the undertaking material. It is its substance. If then there were no other considerations, it would be impossible to hold that Garner was not bound by his grant to Irwin, because the contract was not mutual. McHugh was authorized to procure leases for Irwin, though not authorized to seal them. He procured this from Garner, and Irwin accepted it, had it put upon record by his direction or with his sanction, and thus he became liable to perform all that the instrument stipulated he should. Under these circumstances it cannot be said there was no mutuality in the contract.
But there is another view of the case which relieves it from all difficulty on this point. Want of mutuality is no defence to either party, except in cases of executory contracts. It has no applicability to an executed bargain. There are many where the obligation is all upon one party. As to one, the obligation was fulfilled, the contract was executed when it was made. As to the other party it remains executory. A consideration may be either something done, or something to be done, or a promise itself. When it is something already done, it is idle to talk of want of mutuality. That is to be considered only when the obligations of both parties are future. Such was the case of Bellas v. Hays, 5 S. & R. 427, so much pressed upon our attention in the argument. The agreement was wholly executoryj upon both sides.
Mutuality of obligation is considered, perhaps, more frequently in courts of equity than in those of law. In bills to enforce the specific performance of contracts, which of course have to do with executory agreements, it is a constant inquiry what equities the defendant has against the complainant and a chancellor will not enforce specifically a contract that is one-sided. But he will [517]*517interfere at the suit of a complainant who discharged his part of the contract, before the undertaking of the defendant was made, or contemporaneously therewith. Unquestionably, if a deed be made to a married woman, or to an infant, and a note be taken for the purchase-money, the deed is not void though the note be irrecoverable. It will be no answer to a demand for the subject of the deed to say that the contract was not mutually obligatory. That would do, if the contract was executory upon both sides, for then equity might interfere. But neither courts of law nor of equity interfere with executed contracts. They may be undone for fraud, but not for want of mutuality. Much less are they annulled because the consideration may prove to be not formally what was expected, though substantially the -same.
It needs but a reading of the instrument to show that the contract between Garner and Irwin was an executed one, on the part of Garner. It is an immediate conveyance of the right to mine, take and carry away the iron-ore on and in the land of Garner for a consideration mentioned. It is not an agreement for a future conveyance. Garner sells in words de prmenti. He has nothing more to do. He undertakes nothing more. He signs and seals the instrument as evidence of what he had done, not of what' he had to do. In the strictest sense, therefore, the contract was executed as to him, and the subject of the grant passed out of him the instant he signed the deed, and it was accepted by Irwin. The grant was not, then, void for want of mutuality in the contract.
It is next objected that the agreement being void at law, it could only acquire validity in equity, through subsequent ratification by both Gamer and Irwin, and that a chancellor would not enforce it under the circumstances of the case. We are not prepared to admit that an instrument executed in the name of one of the contracting parties, but without any authority in the agent who fexecuted it, is good only in equity, if it be duly and formally ratified by the party, whose name was put to it without authority. But it is unnecessary to discuss this question, for we have shown that Garner’s grant was not void at law, if it was accepted by Irwin, and that it was accepted the verdict establishes. The rights of the parties are rights at law, and not within the cognisance of a court of equity. If Irwin had ratified the contract by a sealed instrument it would have become his deed, and he would have been answerable for a breach of its covenants in an action of covenant. If he did ratify it by parol, if he accepted it, claiming rights under it, though it is not his deed, it is his contract and he is answerable for failure to comply with its obligations in an action on the case. Neither he nor Garner has any need of the aid of a chancellor.
Again it is objected that if the agreement was not void it was [518]*518executory, and such as a court of equity would not enforce under the circumstances of this case, or that if it was an executed contract, it was a deed of bargain and sale, and void for want of a pecuniary or valuable consideration expressed. We have already said that, in our opinion, the contract was anjae.cuied_.one so far as to convey the right to mine _and-tafce away iron-ore. And if executed it is of no importance w-hethSF'it is to be regarded a deed of bargain and sale or not. The "consideration of such a deed must truly be a valuable one,"but it need not be expressed in the instrument, if a consideration be averred: Fisher v. Smith, Mood. 569 ; Jackson v. Alexander, 3 Johns. 484. It has even been held that when no consideration is expressed parol evidence may he given to shoAv that one passed from the grantee to the grantor: White v. Weeks, 1 Pa. R. 486. HoAvever this may be, it Avas resolved in Wykes v. Tillard, Cro. Eliz. 595, after the Statute of Uses, that the reservation of a rent on a bargain and sale would be considered a sufficient consideration to raise a use to the bargainee. Apply noAV these principles to the present case. The grant from Garner to Irwin expresses a valuable consideration. It is 25 cents per ton of ore mined, to be paid by the grantee. The obligation assumed to pay this is the consideration. Jackson v. Florence, 16 Johns. 47, cited on behalf of the plaintiff, was a case of bargain and sale on condition that the grantee should support the grantor. Even in that case it was intimated that the deed Avould have been good had there been any agreement, outside of the deed, that the bargainee should furnish the support. But in this state, where the acceptance of a grant subject to burdens implies a promise to discharge the duties described, it cannot be said that such a deed delivered and accepted is without a valuable consideration. We say so much on the assumption that the grant from Garner to Irwin is a bargain and sale. If it may be treated as a lease, the law raises a consideration out of the tenure itself.
Another objection urged against the validity of Garner’s grant is, that it is barred by the limitation of the 6th section of the Act of April 22d 1856. But that section applies exclusively to cases of a character entirely different from the present. It declares that “ no right of entry shall accrue, or action be maintained for a specific performance of any contract for the sale of any real estate * * or to enforce any equity of redemption after reentry made for any condition broken, or to enforce any implied or resulting trust as to realty but within five «years,” &c. If Garner’s deed is a grant executed, as we think, and not a mere agreement to make a grant, it is not within the operation of this act.
It is further contended that the court below erred in that pare of the charge in which the following language was used :• “ Evi[519]*519dence was offered by the plaintiff to show that McHugh said, when the agreement was executed, or when negotiation was going on, that Irwin intended to put up a furnace in one or two years ; and that Marklesburg or McOonnellstown was designated as the point; and it is claimed further that because that was not done this instrument is inoperative and invalid. We have been unable to come to the conclusion that this evidence is entitled to any force, either in construing the instrument or. as evidence of fraud to be submitted to the jury.” It would be going very far to hold that a man may be relieved from his deed by proof that when it was made promises were held out to him that were not performed, and that is the utmost that was exhibited in this case. Fraud, it is true, avoids all contracts, but fraud consists in false representations of things as facts which are not such, or in deceitful concealment of existing facts, neither of which is found in the evidence. The conveyance was not upon condition that furnaces should be built. If void, then it must be because deceit was practised before it was made or at the time of its execution. But a promise is not, in itself, a false and deceitful representation. Performance may have been intended when the promise was made. If so, there was no wrong done when the title passed out of the grantor, and certainly a failure to perform the promise cannot revest a title after it has been divested. We agree with the learned judge of the Common Pleas that there was nothing in the evidence either to affect the construction of the contract, or from which the jury could find fraud to avoid it.
This is all that need be said respecting the errors assigned to the charge and to the answers to the plaintiff’s points. None of them are sustained. There remain four bills of exception to the admission and rejection of evidence. The first is, that the court erred in admitting in evidence the record of the agreement between Garner and Irwin, without accompanying evidence of authority in McHugh to execute it in the name of Irwin. If we are correct in what we have said, this averment of error fails. We have thus far treated the instrument as not being the deed of Irwin. Yet it was Garner’s deed, and as such admissible. The question was thus ruled in Bellas v. Hays, above referred to.
The second bill of exceptions, probably, became immaterial under the ruling of the court. But if not, in view of the fact that the action was trespass quare clausum fregit, it is manifest that the evidence offered and received tended directly to reduce the damages and to show that the injury to the plaintiff, if any, was small.
The deposition of McHugh tended to prove the existence of sealed authority in him to seal the deed for Irwin. It is true this authority was afterwards disproved, and the court put the [520]*520case to the jury as if there was none. The plaintiff was, therefore, not harmed by the admission of the deposition.
As to the remaining bill of exceptions, it is enough to say that we are unable to discover what legitimate bearing the evidence offered by the plaintiff and rejected could have upon any question in the case. Irwin had accepted Garner’s deed long before the railroad was built, and before the mines were opened, and his title had been sold at sheriff’s sale in the presence of Garner, without objection, before the plaintiff’s right accrued.
The judgment is affirmed.