The opinion of .the Court was delivered by
Huston, J.
I shall content myself with noticing those matters in this-long record which are material to the cause trying. The first bill of exceptions contains matter which, if doubtful, ought not [243]*243to continue so. The witness was called to prove what two persons, now dead, swore before arbitrators in this cause at some time before 1825—1826, when the last of them died. There had been a former trial of this case in December 1828, at which the same witness had been called to prove the same matters in substance ; viz. that these two persons had sworn, that at the time their father accepted the deed and gave the bond in question to Withers, he, Withers, had said there was not a judgment against him under the canopy of Heaven.
The witness at this trial was admitted, upon his swearing that he could remember all that the deceased witnesses had sworn. After his examination in chief, he, on his cross-examination, said, “ I do not remember that, at a former trial, I testified, as now, on there being no judgments against Withers; but I remember now they did testify that before the arbitrators.” After some more questions, to which he answered, he did not remember what any other witness than the-two deceased swore, he said, “ the reason why I remember what the Jltkinsons swore and not the others, they were my neighbours, and frequently heard them mention it over since. The matter which principally strengthened my memory since is George Jacobs’s notes, which I have seen frequently since;” and again, says, he saw Jacobs taking notes at the arbitration, and believes Jacobs took notes of all the evidence, &c.; that he saw those notes in Jacobs’s office. The plaintiff then offered to ask the witness, Did you hear George Jacobs admit in court, when examined as a witness, that the only notes he had, were memoranda of what he expected to prove, made by him before the arbitration 1 The defendant objected; the court overruled the question, and exception taken; and this decision is attempted to be supported by saying G. Jacobs was alive and could have been sent for and examined. Most clearly the question should have been put. Mr Jacobs, or somebody else, had shown those notes to the witness, who had frequently read them, and impressed their contents on his memory, under a belief that those were notes of what the witnesses swore before the arbitrators, taken down at the time of swearing; but if Mr Jacobs had afterwards said much more, if he swore at the former trial of this cause that he had no notes of what witnesses swore before arbitrators, it would show that the witness had been shown as notes of testimony, writings which were no such thing; and if he did hear Mr Jacobs swear in 1828 that he had no notes, it is strange that he did not recollect it, when something purporting to be notes of the evidence was shown him, and more strange, that he would persist in calling them what he heard Mr Jacobs swear they were not.
But. as the cause goes back, it is important that an opinion on the whole subject should be given. It is not, as a general rule, true, that a man called to testify what witnesses, sworn at a former trial, said, can refresh his memory by wbat a third person, or the witness himself, has since told him was sworn. He is called to testify, and can only be admitted to testify, what was said on oath in court; he can [244]*244not substitute for this what has since been said by the same person when not under oath, or said by any other person not under oath. The witnesses were dead before the former trial in 1828; he could have no conversations with them since their death, and his memory was not refreshed by any such means, he therefore says, his memory was principally refreshed by Mr Jacobs’s notes, which he has seen frequently since. This is worse than the other. A witness cannot be permitted to refresh his memory by notes or memoranda made by any other person than himself, except perhaps in a case, where he looked over the writer, and saw at the time that what was written was written correctly; or where he, immediately after it was written, read it over and found it correct; and where he can positively swear, that the paper to which he refers to refresh his memory is the very one he saw written, or which he read immediately after it was written; and I make these exceptions with a perhaps. That matter is not before us, and not agreed; but it is out of the question, that a man who sees another taking notes of testimony shall be heard to testify what he did not remember until he read those notes. Where a man who took notes can refresh his memory by referring to them, or where he can read them, is settled by decisions of our own courts; but there is no decision, no principle, and I believe no dictum, that a man may in a case like the present refresh his memory by reading what was written by a third person, and not seen by the witness for years after it was written. If then this testimony had come out before the witness was examined in chief, he ought to have been rejected; and coming out afterwards, the jury ought to have been told to disregard it totally.
The next two bills of exception are taken without any cause. The agreement between the Messrs Withers and Atkinson, was made in 1818. The articles of agreement drawn by G. Withers, contain as full and fair covenants as. can be devised. The agreement continued open till April 1820, Atkinson having taken possession in November 1818, and making partial payments every two or three months. It must then be perfectly immaterial in this stage of the cause, and in every other, whether the contract commenced in consequence of Atkinson proposing to purchase, or in consequence of Withers proposing to sell; and it must be equally immaterial whether Withers advised Atkinson to purchase, or did not advise him; and yet these are made the subject of two bills of exceptions.
Before I come to what is called the important point in the cause, it must be understood that Mr Black was employed to survey the land and draw the deed, and did both. He was offered to prove, that since the deed was executed, an alteration had been made in the date of it; or, in other words, to prove that it was drawn and executed in the year 1819, whereas, it now purports to have been executed and acknowledged 1st November 1818. This testimony was objected f o, but admitted and exception taken. It was rightly admitted; he was the scrivenerwho drew the deed; one of the subscribingwitnessesto it, and the justice of the peace before whom it was acknowledged. The [245]*245evidence, when admitted, was most unsatisfactory; he was twice examined ; he swore positively that the deed was drawn, and executed in 1819; but on what day, or even in what month, he could not tell. There were three grantors, Michael Withers, George Withers and wife, and John Withers and wife. The parties lived ten or twelve miles apart, and he took the acknowledgement of George and wife on one day; John and wife on another day, and Michael at a different time and placé : yet the acknowledgement was but one, and purported to have been all of the 1st of November 1818. John Fullmer was the other subscribing witness, and rode round with him, and saw all of them acknowledge as well as the justice did. I do not say there was really any thing wrong or very uncommon in this; a different course, however, might have been taken. Jltkinson was not present, and the deed was not then delivered to him; it was delivered to him on the 1st April 1820, when he paid some more money, and gave the bond on which this suit is brought. In drawing the deed, the scrivener had left a blank for the day and month. As the deed was, these were filled with 1st November; and at the examination he thought this was done in the deed by G. Withers, and in the acknowledgement by J. Fullmer, and this at the time the deed was executed. Afterwards, he was called again, and says, “ I cannot say precisely when the deed was acknowledged, except from the date in the deed. The reason why I believe the date in the deed was altered, was because I have never been in the practice of antedating any deed which has been executed by me. I am under the impression the deed was left blank, it was not dated 1st November 1818: as respects the year, I have no doubt; it was in the year 1819 it was executed.” Immediately after, he says, “I have thought on this matter, and have endeavoured to recollect the truth; the word c November’ was written at the time I drew the deed, and not at the time I took the acknowledgement;” and again he says, “ the date in the acknowledgement was filled up by Fullmer at the time I took the acknowledgement.”
It was apparent the letters “ eigh,” in the word eighteen, were written on an erasure. This was not discovered at-the trial of this cause before arbitrators, nor till five or six years after the commencement of it. Many men of more experience, and as careful as Mr Black, have witnessed deeds and taken the acknowledgement of the grantors and their wives, without ever looking at the date of the. deed; and it was no imputation on his integrity that he did not look at it; nor was it any imputation on his memory, that in 1830 he could not recollect all that he knew in 1819. I shall show that this matter was not so material as seems to be supposed by the complainants. It was assumed, but without very conclusive evidence, that the word nineteen had been changed to eighteen in the date of the deed, since the execution and acknowledgement, and that it was done by G. Withers, or by Fullmer, who was in his employ. Now the only proof was, that Fullmer had been in Withers’s employment some years before. Fullmer was dead before this discovery was made. When [246]*246Atkinson was able to pay what he had agreed as the first instalment, viz. 1st April 1820, the deed was given to him, and he gave his bond for the residue of the purchase moneys soon after he took the deed and had it recorded; it was then as it, is now.
The first witness, on whose admission I have commented, swore that at the trial before arbitrators, two sons of the. defendant were examined, and proved that when G. Withers brought the deed to their father on the lst.of April 1820, and when defendant executed this bond, G. Withers said there was not a judgment against him under the canopy of heaven; and there were many judgments against him, as appears by the records produced ; though it was admitted none of them had ever been levied on this land; and also, that before the trial all were paid and satisfied.
On the other hand it was proved, and at length admitted, that George Withers, at the time the deed was delivered and the bond given, did tell Atkinson there were two large judgments against him, and also delivered to Atkinson a release of the tract in question, from the lien of those judgments.’ Every thing was denied, and testimony given after a very tedious trial, proving all alleged on one side, and the other, if believed.
As is the custom here, certain propositions were stated to the court, on which they were requested to lay down the law to the jury.
The first point made by defendant’s counsel was rightly abandoned here. The law on that subject is settled by this court in Cassel v. Cook, 8 Serg. & Rawle 293, and many other cases. Where the suit is on articles of agreement, before deed delivered and bonds given for the purchase money, before the plaintiff can demand- the money or recover the penalty in debt for the money, it behoves him to tender a good and sufficient conveyance. It is different after a deed is delivered and accepted, and a bond is given for the purchase money, which is itself at law a consideration; and where the obligor must go into equity for relief, if the consideration has failed, or the contract has not been complied with.
The second, third and fourth points are in substance tbe same, and assert that the vendor is bound to - acquaint the purchaser with incumbrances; and if he do not, or if he informs him falsely, he is guilty of a deceit: that if the vendor states an untruth as to this matter, the contract is void, and cannot be confirmed by any subsequent declarations or acts by which its fairness is acknowledged; and if this was the case here, the facts, that Atkinson took possession of the. land, has enjoyed it ever since without molestation from any one, and has sold part of it, do not alter the case, or make him ’liable to pay the purchase money.
There is no subject on which we find so much in the law books as the fairness of contracts; and if we were to judge from their arguments in court, no subject on which men of -talents and learning have such vague and strange opinions. The above is a fair statement of the positions laid down in this cause: which seem to blend the [247]*247case, where a man, who has been guilty of fraud in making a contract, seeks to carry into effect such fraudulent contract, without rectifying or allowing for the advantage he has obtained; with cases where the contract has afterwards been completed by both parties, and where the defect complained of was remedied and removed by him who concealed it before the other suffered from it, nay, before he knew of it. It seems also to blend the cases under and within the statute of fraudulent conveyances, which declares deeds within its provisions utterly void and of no effect against creditors, with frauds in other cases, in which Lord Coke tells us, the common law rectifies what is amiss and leaves the rest as the agreement left it. I certainly do not intend to be the apologist of fraud or misrepresentation in contracts, or in any situation in life; but, except in this and the two adjoining counties, I have never heard it contended, that if a man in selling a tract of land made any wilful mistatement repecting it, although no injury has resulted to the vendee, that he thereby forfeited his tract of land, and that the right to it at once vested in the person to whom he stated the falsehood, without the payment of any purchase money. When a contract is avoided for fraud, it is avoided throughout; it is as if it had never existed ; and the property is in the vendor as if no such contract had ever been made; and the vendee if he has paid money recovers it. This applies to contracts not completed, more generally than to those which have been carried into effect; and there are very few instances in which it can be applied to cases in which the purchaser has received the possession and caiinot restore it to the vendor. In such case, the purchaser is compensated by recovering damages for the injury he has sustained from the misrepresentation. Without attempting to write a system upon conveyancing, and upon the effect of fraud on contracts executory or executed, I will refer to a few authorities and principles which will settle this case. In the first place, the books are full of distinctions between defects and incumbrances on an estate which are secret, and those which are open and palpable, which a purchaser can discover, if he will look for them, and the difference between the register counties in England and the other counties, in the former of which the purchaser can find all or nearly all possible incumbrances. Sugden states, that although the vendor or his agent states there are no incumbrances, or none but such as he has given a list of, yet it is proper to search for judgments and mortgages immediately before the deed is executed. Sugd. Vend. 302. Next he tells us, if an incumbrance be discovered before the deed is executed and delivered, and the purchase money paid, the vendor must discharge it, if the vendee so insist, whether the purchaser has or has not agreed to covenant against incumbrances; or the vendee may refuse to accept the deed, and in case of false representations may recover any expenses incurred in the course of the purchase. Sugd. Vend. 312. Or if he has accepted the deed, the purchaser, if he has not paid, may retain the purchase money until the [248]*248incumbrance is paid off. Sugd. Vend. 312. So if the purchaser had paid the money, but deeds are not completed, he may refuse to accept the deed, or to enter on the land, or if he has entered, may restore the possession and sue for his money; and this though he was not entitled to a covenant against the incumbrance discovered; but, if the deed has been executed, and the money all paid, and the covenant in his deed do not extend to the incumbrance as a defect of title, he is without redress. If the covenants do pxtend to it, his remedy is on them. The writer then discusses a point immaterial in this country, viz. whether, after having accepted the deed and given bonds, the purchaser can retain for incumbrances not discovered by him, and against which he has no covenants; and be comes to the conclusion that he cannot at present in England, unless he can prove that the vendor knows of the incumbrance or defect; and then he may recover compensation at law by an action on the case, or have relief in equity. But there is no intimation there, or any where else that I know of, that the damages at law or the relief in equity is more than compensation for the injury; and of course, if no injury, as in this case, where the vendor paid off the incumbrances before any injury was sustained, nay, so far as we know, before he was threatened with injury, the compensation would be what the injury was, that is, nothing.
I have said that this discussion is not material here; because it is now settled in this country, as it was formerly in England, that the purchaser may retain for incumbrances or for defect of title, where he has not paid the purchase money, even though he has given bonds for it. See Steinhauer v. Witman, 1 Serg. & Rawle 438, 447. Hart v. Porter, 5 Serg. & Rawle 204. This last case has settled also what ought to have governed this case on this point, viz., that until the incumbrance is removed, the purchaser may defend himself, though he has no covenant against incumbrances; but, that if the incumbrance is removed after suit brought on the bonds of the purchaser, from that time it ceases to be a defence to the purchaser, and the vendor can recover on his suit, but must pay the costs up to the time when the incumbrance was removed, and notice of it to the purchaser. This case has been repeatedly recognized since. I shall notice the alleged dower in the wives of John and George Withers hereafter.
The fifth, sixth, eighth, ninth and tenth points relate to the alterations alleged to have been made in the deed; as does also the seventh, which I shall notice separately.
These points, in substance, amount to this; that any alteration in a deed avoids it, without inquiry who altered it, if the alteration is made after acknowledgement before a justice, though before delivery; and in an immaterial point, still it avoids it, and releases the defendant from payment of his bond; that the alteration by George Withers, or by his procurement, avoids it, as the deed of John and Michael Withers, and Atkinson would have no remedy against them on his [249]*249warranty ; that the alterations leave it subject to all liens to this day against Michael and John Withers; and that the delivery of such altered deed to Atkinson was a fraud, and discharged him from all liability to pay his bond. This is a full summary of the points, except that the counsel request the court to state that the facts, as well as the law, are as they state them.
The subject of alteration of deeds is a wide field, into which I do not propose to enter, further than this case requires; because the only evidence that this deed was altered, as to its date, is, when fairly examined, no more than just this; that Mr Black at that time did not look at the date in the deed, or if he did, he does not now remember it; and his impression is, that if he had seen the date he would have objected to it; and because, in the view I shall take of this matter, it has little bearing on this cause. I shall say, that I approve of the modern cases, which do not' destroy a deed because the mice have nibbled off the seal, or because accident has defaced a part of it, or fire or water destroyed it-. We have provision in our laws for supplying the loss of a deed.
I also argue that the courts ought so to decide, that every man who is a party to a deed should be deterred from any alteration in it after it has become a deed, by making it void, as to him who altered it, and leaving it effectual to vest the estate of the other party. In short, that when a jury find that one of the parties has altered a deed, after it became effectual by delivery, he shall never support a suit on that deed. But that, although the deed is altered after delivery by the grantor, and although he thereby loses all benefit of the covenants-contained in it, still the alteration does not vest the estate in the grantor. This doctrine is not only well established by ancient and modern authorities, but consonant to reason. If the owner of a deed alters it in any way, it becomes void as to him. Pigott's case, 11 Co. 27; Shep. Touchstone 57, 68, 69. The modern cases say, an alteration by a stranger, though material, will not have this effect; Jackson v. Malin, 15 Johns. 297; Rees v. Overbaugh, 6 Cowen 746. But altering the deed by the grantor operates not to divest an estate which has passed by it. “ A deed of revocation, and a mere deed of settlement by that deed, though after the sealing and execution blanks were filled up in said deed, and deed not read again to the party, and not resealed and executed, yet held, a good deed.” Paget v. Paget, 1 Rep. in Cha. 410. I have quoted the whole of this case, and I understand it as deciding the deed good to pass the estate; it is so understood by the annotator to Co. Lit. 225, 226, and is the case there referred to as being in 1 Rep. in Cha. 100; but at page 100 there is nothing on that subject. And in more modern times, in Hatch v. Hatch, 9 Mass. Rep. 311, we find the same doctrine; and Lewis v. Payn, 8 Cowen 71; and the cases there cited, some of which I have examined, and others I could not, at this time. I establish this position, that if a deed be altered after delivery, the alteration destroys the deed as to the party who altered it, but does not destroy [250]*250the estate, if the deed contain covenants, the party altering it loses all remedy on them; but the title is not divested. I omit the distinction, taken in Lewis v. Payn, as to incorporeal rights which lie in grant, and estates passing the realty, as not material here. In that case there were counterparts, each executed by both parties, one of whom altered the part in his possession, and would have lost all remedy on it if that had been the only deed, but his right was saved by the other deed, which remained unaltered.
It wpuld indeed be strange, if the grantor of a tract of land could make the title void as to the purchaser, by altering the deed after execution, and before delivery, so that it would pass for nothing, and leave the land for his heirs or creditors, after he was paid for it; and this in consequence of his own act. If it contained covenants in his favour, he would lose all benefit from them; but it does not re-vest the estate in the grantor, nor take from the purchaser the benefit of any covenants in his favour. So if the purchaser alters the deed after it is delivered to him, he loses all benefit from the covenants in his favour; but it does not destroy his title, or revest the estate in the grantor. The case in 8 Cowen, just cited, is full to show that it is the instrument altered which is rendered void as to any benefit to be derived to the party- who altered it; and that, where he has no other evidence to support his claim than the altered deed, he could not recover, having by his own act destroyed the evidence of his own demand; but that if he has other evidence of his claim, besides the deed he has erased, or to which he has made an addition, he may recover on that other evidence. There the landlord had altered the lease by a material addition, and would have failed in recovering the rent claimed on that lease, in that suit, but for the production of the counterpart by the tenant. The common pleas decided that he had lqst his rent entirely; the supreme court corrected that decision, and said he could recover on the counterpart. And the principle of that decision, and of all the cases cited, is, that even admitting the date to have been changed after the execution and acknowledgement, but before delivery, the alteration does not affect the estate, of Atkinson the purchaser; and that the alteration of the deed does not avoid any other instrument relating to the same estate, except the identical one altered. The bond then remains as good as ever, and ought to be so; if the estate of Atkinson is unimpaired, why should he-not pay the purchase money?
But it is said the alteration by George avoids it as to John and Michael. Now George was either their agent, entrusted by them to keep and deliver the deed, in which case his act is their act, and will no more avoid the deed as to them, or prevent the estate passing from them, than from passing from himself. Or he was not their agent, and not entrusted by them, in which case it is an alteration by a. stranger, as respects them, and the alteration will affect no one; especially as, under the circumstances of this case, it was a perfectly immaterial alteration. This view of the case makes it unnecessary to [251]*251say whether—as a deed passing land has no validity until delivered, and is, until delivery, of no value, and has no- effect or operation—it may not be altered by the grantor at any time after execution and before delivery; and whether, if this were fully proved, it would have any effect on the validity of the deed for every purpose. Some of the cases cited seem to put it- on being an alteration after delivery, and as it is no deed until delivered, I see no reason why the law should not be so; but-the point whs not argued—is not necessary to be decided, and I choose to give no opinion on the subject'.
It remains to notice the seventh point proposed to the judges, as to the effect of the alteration, if made after the acknowledgement on the estate and interest of the wives of John and George Withers. The deed, independent of their acknowledgement, does not pass the estate of the wives; if it is not as it was at the time of the acknowledgement, then it is not the deed .they acknowledged, and their estate would not pass. This I say in consequence of the case in Burrow’s Reports. If it were not for that case, I could not find any very good reason why—if the land, and consideration, and estate granted, continue the same, and these are the only matters material in their examination which ought to be known by them, or made known to them—their estate should not pass, by reason of an immaterial alteration unknown to them; but I am contented that case may stand as an authority, and in this respect there was a defence to the bond. But by the decision of Hart v. Porter, 5 Serg. & Rawle, before cited, and since repeatedly recognized, the plaintiff, on procuring new deeds of release, by John and George, and their wives, duly acknowledged, and delivering them to the defendant, can recover in this suit, on paying the costs up. to the time of delivering the release; or he may discontinue, and, after delivering such releases, recover in another action on the bond.
The law on the effect of misrepresentation as to incumbrances, and as to the effect of the alteration, even admitting that it was made by G. Withers, or by Fullmer at his instance, was not correctly stated, as applied to the facts of this case.
Judgment reversed, and a venire facias de novo awarded.