BLYTHE against M'CLINTIC and another. IN ERROR. 1821. Chambers burg. Monday, ERROR to the Court of Common Pleas of Franklin A. holding a. mortgage of county, in an ejectment brought by Samuel Blythe against C.'s land, John McClintic and Matthew Duncan, in which there was a B. that he verdict and judgment for the defendants in the Court below. agreed with would pur chase the land at Sheriff's sale for B. at a certain price, by B., and by another agreement that cer The case was argued by Clarke and Brown, for the plaintiff in error, and J. Riddle and Chambers, for the defendants to be paid him in error. tain property held by B., together with should be ap a debt due by if there was sufficient to to be pur should be The opinion of the Court was delivered by TILGHMAN, C. J.-This is an ejectment for a tract of land the mortgaged in Franklin county. Evidence was given of title in Samuel premises, Nicholson, who on the 28th December, 1793, conveyed to plied to paying John Nicholson, who mortgaged to Joseph Ball, by deed C. to A., and dated 20th October, 1794. On the 31st March, 1801, two distinct articles of agreement were executed, between Joseph do so, then the obligation of Ball and Samuel Nicholson. By one of these articles, after B. to pay for a recital that the late John Nicholson, then deceased, had the premises mortgaged to Joseph Ball, three tracts of land, (of which chased by A. that in dispute is part,) which were advertised by the Sheriff void. A. purof Franklin county for sale on the 9th April next ensuing, and that Samuel Nicholson was desirous to become the pur- riff's sale: no chaser thereof," it was agreed that the said Joseph Ball deed was should purchase the said three tracts, containing together, or any appliabout 460 acres, at the Sheriff's sale, provided the same proceeds of should not go higher than 14,000 dollars, and convey them to the said Samuel Nicholson, for the sum of 14,000 dollars, to be paid in manner following, viz. one-third on or before tween the parthe 9th April, 1802, with lawful interest thereon from 9th chased the lands at She made to B., cation of the property de pay A.'s debt, and the agreements be ties were mutually cancelled and releases given; after which B. conveyed to D., a friend of B, and a person in necessitous circumstances; held, in an ejectment by D. against persons claiming under A., that evidence is not admissible to shew that A. recovered his debt by proceedings against the property of C. Where judgment has been obtained in a scire facias on a mortgage, evidence is not admissible afterwards in an ejectment to shew payment of the mortgage debt prior to the judgment. 1821. Chambersburg. BLYTHE V. and another. April, 1801, and the remaining two-thirds in six equal an nual payments, the first whereof to be made on the 9th April, 1803, and so on yearly on the 9th April, until the whole should be paid, with lawful interest on each payment, from M'CLINTIC the 9th April, 1801. By the other article, after a recital "that John Nicholson was in his life-time indebted to Joseph Ball in the sum of 51,000 dollars or thereabouts, for which the said Ball had obtained judgments, which bound his property in the counties of Franklin and Dauphin in Pennsyl vania, to satisfy which, sundry lots of ground in the city of Washington were conveyed by the said John Nicholson to the said Ball, and that part of the said property in Franklin county was claimed by the said Samuel Nicholson, by virtue of an agreement between him and the said John Nicholson, and that the said Ball had agreed to sell to the said Samuel Nicholson the property so claimed, for the sum of 14,000 dollars, and that the said John Nicholson had conveyed to the said Samuel Nicholson, sundry debts and property of va rious kinds, to secure and indemnify him against any sums which he should be obliged to pay for the purchase of the premises;" it was agreed between the said Samuel Nichol son and the said Ball, that all the property bound by the said mortgage or judgment, and all the debts and property as signed to the said Samuel Nicholson by the said John Nicholson should be applied to the payment of the debt due to the said Ball, and in case there should be a sufficient sum arising therefrom to satisfy the same, then the obligations which the said Samuel Nicholson should give to the said Ball to the amount of 14,000 dollars, for the purchase of the said 460 acres of land, should be delivered up to the said Samuel Nicholson and cancelled. Joseph Ball, after the making of these agreements, had the mortgaged lands in Franklin county sold by virtue of a levari facias, on a judgment obtained on his mortgage in October, 1802, and became the purchaser himself, for the sum of 4,000 dollars, and received a deed of conveyance from John Brotherton the Sheriff, on the 8th January, 1803. There was no evidence of any payment made by Samuel Nicholson to Ball, in pursuance of their agreement. But it appeared by several letters of Samuel Nicholson to Ball, dated the 17th February, 1st March, 20th April, and 25th April, 1805, that Nicholson 1821. burg. BLYTHE V. and another. despaired of being able to make payment, and offered to cancel the agreements of the 31st March, 1801. This offer Chamberswas accepted by Ball, and on the 25th April, 1805, (the day of the date of the last letter,) an indenture was executed, by which the parties mutually released each other from both the MCLINTIC said agreements, and declared that the same should be considered as in all respects null and void. On the 1st March, 1806, Samuel Nicholson executed a conveyance to Samue! Blythe, the plaintiff, of 500 acres of land in Franklin county, comprehending the land in dispute,) in consideration of 16,000 dollars, paid or secured to be paid to him, with warranty against the said Samuel Nicholson and his heirs, and all persons lawfully claiming or to claim under him or them. About the time of this conveyance, and for some time before it, a great intimacy subsisted between Blythe and Nicholson; and Blythe was in necessitous circumstances. This is a summary of the evidence given on the trial in the Court below, after which the plaintiff's counsel offered to give in evidence, a number of mortgages from John Nicholson to Joseph Ball, for lands in different counties in Pennsylvania, and proceedings on some of those mortgages, with a view of shewing that Ball had received as much as would pay his whole debt of 51,000 dollars. He also offered in evidence, several deeds to Samuel Blythe for land in Delaware county, Pennsylvania, dated in the year 1805, and deeds for the same land from Blythe to Samuel Nicholson, in the year 1807. All this evi. dence was rejected by the Court, whereupon the counsel for the plaintiff excepted to their opinion. When Samuel Blythe, the plaintiff, received a conveyance of the land in dispute, from Samuel Nicholson, the legal title was in Joseph Ball, of which the plaintiff was bound to take notice, because Ball had purchased at the Sheriff's sale, and received a deed from the Sheriff, which was on record. The plaintiff, who claimed under Samuel Nicholson, stood in his place, and had only such an equitable interest as Nicholson could convey to him. But what was that? A few months before Samuel Nicholson conveyed to the plaintiff, he had come to a full understanding with Ball, and mutual releases had passed between them. Now, when those releases were executed, it was well known to Nicholson, that Ball had been a purchaser at Sheriff's sale, and received a deed from the 1821. Chambersburg. BLYTHE 7. Sheriff, by which any interest which he might once have had in the mortgaged premises by virtue of a deed from his brother John Nicholson, in the year 1795, was extinguished; and when Ball released him from his obligation to pay 14,000 M'CLINTIC dollars, and he released Ball from the agreement to apply and another. the proceeds of sundry other securities, towards the discharge of the debt of 51,000 due from John Nicholson to Ball, of which the debt due by this mortgage formed a part, I think it must have been the intent of both parties, that Ball was to retain the mortgaged premises, purchased at Sheriff's sale, discharged from all equity or claim of Nicholson. Then if Nicholson could make no further claim, neither could the plaintiff who comes in under him. Indeed, it appears very extraordinary, and very suspicious, that after what had passed between Ball and Nicholson, the latter should undertake to make a conveyance to Blythe, who was then distressed for money, and being employed as his agent, (as appears by the letters from Nicholson to Ball,) must probably have been acquainted with the settlement and releases which had taken place. But there is another, and a decisive reason, why the evidence offered by the plaintiff should not have been admitted. A scire facias on Ball's mortgage had issued to August Term, 1802, against the widow and heirs of John Nicholson, deceased, and Samuel Nicholson and others terre tenants. To this writ the Sheriff returned, that he had made known, &c., and judgment was entered in October, 1802. Now this evidence offered by the plaintiff went to prove payment prior to that judgment. That certainly was inadmissible. If any payment had been made, Nicholson might have pleaded to the scire facias. That was his time, and having suffered judgment to pass against him, neither he, nor those claiming under him can be let in to plead payment afterwards. The counsel for the plaintiff, did indeed contend, that Samuel Nicholson suffered judgment to go on the mortgage, because he had agreed to purchase of Ball, and the agreement being afterwards cancelled, he should be permitted to open the judgment and plead payment, or what is the same thing, give evidence of payment in this ejectment. But I am of a very different opinion. By the cancelling of the agreements between Nicholson and Ball, Nicholson was discharged from the payment of 14,000 dollars which he had bound himself 1821. Chambers burg. BLYTHE υ. to pay, and not the least intimation appearing in the indentures of release, of any intention to permit him to set up a plea of payment, which might affect the title of the land purchased by Ball of the Sheriff, I can see no pretence in law or equity, for admitting evidence of payment, either by Ni- MCLINTIC cholson, or the plaintiff who stands in his place. I am therefore of opinion, that the evidence was properly rejected by the Court below, and the judgment should be affirmed. Judgment affirmed. and another. BRINDLE and another against M'ILVAINE. IN ERROR. Monday, ERROR to the Court of Common Pleas of Franklin A. convey county. ed to B., 25 acres of land, part of a large tract, in con This was an ejectment for 25 acres of land in Franklin sideration of 825 pounds, county, brought against George Brindle and John Brother-and, at the ton by Elizabeth McIlvaine, the plaintiff below, who having same time, B. gave A. a bond died after the commencement of the action, her heir and de- for the payvisee, Alexander M'Ilvaine, was substituted in her place, next day, and ment thereof according to the Act of Assembly in such case provided. also permitting A. to sell Both plaintiff and defendants claimed under Robert Haslet, the 25 acres if who was seised in fee of a large tract of land of which the he sold the 25 acres in dispute were part. On the 24th March, 1808, agreeing to Robert Haslet, who married the daughter of Elizabeth advance of McIlvaine, executed a deed by which he conveyed to the price on the said Elizabeth, the 25 acres in question in fee, in considera- which he might sell the tion of 3251. to be paid by her; and on the same day she whole. A. gave him her bond in the penalty of 2,000 dollars, with the retained pos following conditions, viz. that the said Elizabeth should pay afterwards residue; A. allow B. the same, for session, and entered into articles of agreement with C. to sell the whole, in consideration of money and land, and eventually gave C. a deed for the whole. B.'s deed was not recorded till after the agreement, but C. then had notice of it. Hell, that B. bad no right to sell on the terms that part of the consideration money should be paid in land: but that B. could not recover the 25 acres from C., until B. tendered all the purchase money due on the bond. VOL. VII. Y y |