enters animo clamandi, as where he enters and surveys the land, it operates as a bar to the act of limitation; and where the intent with which the entries are made is doubtful, the question of intention must be submitted to the jury: Miller v. Shaw, 7 Serg. & R. 129.

The learned judge admits the principle ruled in Altemas v. Campbell, but denies that there is such an explicit declaration, such an act of notorious dominion as brings the case within the principle there decided. He instructs the jury, as a matter of law, that the entry, as testified to by the witnesses named, did not toll the statute, a charge which, with all respect, is in direct opposition to Miller v. Shaw, as above cited. Goodspeed and Metcalf, whose testimony is incontestable, prove unequivocally that in April, 1834, Goodspeed, as the agent of the plaintiff, surveyed the whole of the land now in controversy, including not only the old lot, as it is called, on which Lewis resided, but also the Schoonover lot, lying north of the old lot, and running to the New York line; and further, that the surveys were made with the knowledge, and, if Metcalf is believed (and there is no reason to doubt his testimony), with the assent and concurrence of Lewis. In view of these facts, if believed by the jury, the plaintiff had a right to claim a binding direction that they toll the statute. There was an actual entry on the land, by the agent of the owner, with the avowed object of claiming the land, accompanied with an unequivocal act of dominion or ownership, by making the survey with the knowledge and assent of the person in possession. It is a stronger case than Miller v. Shaw, for here we are not left in doubt that the person making the survey was the agent of the owner. He enters animo clamandi, which tolls the statute, as is there ruled.

We agree with the court, as far as they go, as to the effect of the agreement of the twenty-second of November, 1823, between Robert H. Rose, as attorney of the devisees of William Bingham, and the defendant. The court decide that it tolls the act as to the one hundred and four acres purchased by Lewis, but that it is no recognition or admission of the plaintiff's title to the remainder of the tract, including the sixty-two acres adjoining the New York line. It must be remembered that it is conceded that the plaintiffs had a clear and indisputable title at the time of the contract to all the land embraced in the warrant No. 1835, warranted and surveyed in the name of Thomas M. Willing, which includes not only the Baker lot, but the Schoonover lot also.

Now what is the meaning of the sentence in the latter clause of the agreement, which, after reciting the purchase of the one hundred and four acres, concludes with the words, "being a part of No. 1835"? For what purpose were they introduced? Is it not and was it not intended as an express admission, that the one-hundred-and-four-acre lot was part and parcel of the warrant No. 1835, of which the plaintiff was the uncontested owner? Is it not a clear recognition of title to all the land embraced in that warrant? If so, there is an end to the defense; for, after admitting the title, he shall not afterwards be permitted to dispute it, so as to give title to himself by the act of limitation, for that would enable the defendant to commit fraud by putting the plaintiff off his guard. With such an agreement as this in his hands, would it ever enter the mind of the plaintiff, that after purchasing part of the tract, he would attempt to toll the remainder by virtue of an adverse hostile possession? If Lewis, at the time of the contract, knew that the plaintiff was the owner of all the land included in the warrant, it was his duty to state openly and explicitly, that as to the warrant he held adversely. But, instead of pursuing this honest course, he signs the agreement, the evident effect of which was to deceive the plaintiff. That the acknowledgment of the owner's title interrupts the running of the statute is ruled in Sailor v. Hertzogg, 2 Pa. St. 184; in Criswell v. Altemus, 7 Watts, 581; and in other cases which might be cited. Mr. Justice Kennedy says in Criswell v. Altemus, that it is sufficient to prevent the possession from being adverse, that the party taking possession intends to occupy the land subject to the will of the owner; and that if this be made to appear clearly by the evidence, the statute of limitations will form no bar to the owner's possession, whenever he demands it.

"How can

And in Sailor v. Hertzogg, the chief justice says: his intention be made to appear by anything else than his declaration, which has always been received as evidence of the nature of an occupant's possession?" Here we have a written recognition of the plaintiff's title, which tolls the statute.

Judgment reversed, and a venire de novo awarded.

ENTRY BY TRUE OWNER TO AVOID STATUTE OF LIMITATIONS running in favor of a disseisor: See Altemas v. Campbell, 34 Am. Dec. 494; Watson v. Gregg, 36 Id. 176; Campbell v. Wallace, 37 Id. 219, and notes. A formal entry animo clamandi, or an act of notorious dominion challenging the right of the occupant, will avoid the statute: Douglass v. Lucas, 63 Pa. St. 12. An entry and making a survey, claiming title, by one having a paramount right, tolls the statute: Hole v. Rittenhouse, 19 Id. 309. So where the claim.

ant enters for the purpose of surveying an entire tract, of which that in controversy is a part, the occupant not objecting nor declaring his title, the facts should be left to the jury, and it is error to rule the entry insufficient: Hoopes v. Garver, 15 Id. 525. An entry by an agent must be with the avowed object of claiming the land for the principal, or it will be insufficient, but the avowal may be by acts significant of the intent as well as by words: Hood v. Hood, 25 Id. 417, 423. The mere act of making a survey, unless it be animo clamandi, is not a sufficient entry: McCombs v. Rowan, 59 Pa. St. 414, 418. In all the foregoing cases Ingersoll v. Lewis is cited as authority.

ACKNOWLEDGMENT OF TRUE OWNER'S TITLE interrupting the running of the statute of limitations in favor of an adverse possessor, what sufficient, and what not: See Daniel v. Ellis, 10 Am. Dec. 707; Mitchell v. Walker, 16 Id. 710; Crane v. Marshall, 33 Id. 631; Watkins v. Peck, 40 Id. 156.

REARICH V. SWINEHART.

[11 PENNSYLVANIA STATE, 233.]

EVIDENCE OF VERBAL UNDERSTANDING CONTEMPORANEOUS WITH WRITTEN AGREEMENT, absolute on its face, is admissible to control or defeat it in Pennsylvania, when necessary to prevent fraud originally intended or subsequently attempted in the use of the instrument. Thus, in case of a written agreement between a father and son for the conveyance to the latter of certain land, to be paid for at a specified price one year after the father's death, where the father's executors attempt to enforce payment, evidence of an understanding at the time of the agreement that the land was to be the son's portion, and was not to be paid for unless the father should come to want, but that the title should remain in such a condition that the father could resort to the land for his support, if necessary, is admissible to defeat the action. EVIDENCE OF SUBSEQUENT DECLARATIONS OF PARTY TO WRITTEN AGREEMENT is admissible to corroborate proof of a contemporaneous verbal understanding controlling or defeating the written agreement.

WRITTEN AGREEMENT SHOULD NOT BE MODIFIED OR OVERTHROWN BY PAROL without clear and satisfactory proof, but of this the jury must judge.

UNDER PLEA OF COVENANTS PERFORMED, upon notice to the plaintiff, the defendant may give any matter in evidence which he might have pleaded. OBJECTION TO WANT OF NOTICE OF SPECIAL MATTER of defense admitted in evidence can not be taken in the appellate court unless the evidence appears to have been specifically objected to on that ground in the court below.

TENDER BY EXECUTOR OF Deed ExecuteD BY TESTATOR in his life-time, in accordance with a direction in the will, is good.

COVENANT on an agreement executed by the plaintiffs' testator, Henry Rearich, deceased, and the defendant, Christian Rearich, son of the said Henry, whereby the former covenanted to convey to the latter certain land at a certain price, and the latter covenanted

to "pay the whole amount what arises from said tract" one year after the father's death. Pleas, covenants performed and release. The plaintiffs offered in evidence, among other matters, the testator's will, dated thirteen years after the agreement, which stated in substance that his sons had been provided for in purchases of land under certain agreements, which he wished to be carried out, and that he had executed deeds therefor of the same date as the will, which he directed to be delivered at or before his death. And the plaintiffs also offered in evidence a deed to the defendant, executed as stated in the will, with proof of a tender thereof by one of the executors, with a release of dower by the testator's widow, and a prior tender of the deed without the release by one executor in the other's presence. The evidence was admitted against the defendant's objection that there was no authority for the tender, and the defendant excepted, which constituted the first bill of exceptions. The defendant then offered proof successively of the following facts: 1. A parol understanding between the defendant and his father when the agreement sued on was executed, to the effect that the former was to have the land as his portion of the estate, but was not to pay for it unless the father should be in needy circumstances, but that the title papers should be so arranged that the father could resort to the land for support if necessary. 2. Declarations by the father at the execution of his will that the land was to be the defendant's, and that he was not to pay for it. 3. Other declarations to the same effect before and after the making of the will. 4. Evidence of the value of the land at the time of the agreement. 5. Evidence of the parol understanding at the time of the agreement, offered a second time in connection with the subsequent declarations above mentioned. These several offers were rejected, and constituted the grounds of the second, third, fourth, fifth, and sixth bills of exceptions. Verdict for the plaintiffs directed by the court, and the defendant brought

error.

Casey and Merrill, for the plaintiff in error.

Slenker and Miller, contra.

By Court, BELL, J. In Pennsylvania, perhaps, the door has been opened wider than elsewhere for the admission of parol proof to reform, modify, and even to extinguish a written instrument, in cases of fraud, mistake, or trust. Of the wisdom of this liberality, or, it may be, laxity, much diversity of opinion has been entertained and expressed. But it is now too late

to question the doctrine, since the long series of cases, from Hurst v. Kirkbride, cited in 1 Binn. 616, down to the recent determination in Renshaw v. Gans, 7 Pa. St. 117, with very little wavering, establish the rule, that with us, oral proof of the acts and declarations of the parties at or about the time of the execution of the writing, is receivable to affect it, unless, indeed, these be in direct and express contradiction of the instrument. An instance of this exception is afforded by Heagy v. Umberger, 10 Serg. & R. 339, where, by the terms of a written assignment, the assignor declined to guarantee the solvency of the obligor; it was held that parol evidence was inadmissible to show an undertaking to guarantee, there being no allegation of a mistake or omission by the scrivener, though, as was afterwards said in Lyon v. The Huntingdon Bank, 14 Id. 283, had deceit been averred, the case would have been different. In Bollinger v. Eckert, 16 Id. 424, it was ruled, that whatever material to the contract was agreed to when the bargain was concluded, and the article in course of preparation, may, if not expressed in the article, be proved by parol, unless, perhaps, it is expressly contrary to the writing. But in the instance now in hand, it is unnecessary to speculate upon the extent to which the rule has been carried, or to invoke the aid of the principle in its general application, since our books furnish us with determinations of undisputed authority, that must be accepted as ruling the question here presented. These cases ascertain that a deed or other instrument, absolute and unconditional upon its face, may be controlled or otherwise defeated by a contemporaneous verbal understanding, or a series of facts constituting an adverse equity, where a recognition of these is necessary to defeat fraud.

Of this class is Hartzell v. Riess, 1 Binn. 289, where a defendant was permitted to answer in bar of a scire facias sur judgment, that when he executed the bond and warrant of attorney the plaintiff agreed to cancel it upon the performance of a collateral act by the defendant, which had been performed since the entry of the judgment. To the same effect is Parke v. Chadwick, 8 Watts & S. 98, in which an absolute conveyance was overturned by oral proof that it was given and accepted as a security for the payment of a debt, and to be surrendered when that was discharged: Miller v. Henderson, 10 Serg. & R. 290, the soundness of which has been repeatedly recognized, touches still more nearly our case. There three single bills executed by the defendant as the surety for one Patton, were disproved as evi