text:
    ROBERT T. KING against WILLIAM KING and STEPHEN MUNGER, Administrators of EARL KING.
    A Justice of the Peace, being a judicial officer, must have his court or place of administering justice: and in order to the validity of an amicable judgment upon his docket, the party confessing the same must be before him and at his office.
    The plaintiff in error, who was also the plaintiff below, sued out this writ of error to the Common Pleas of Erie county, to remove the record of a suit which originated upon a writ of scire facias to revive a judgment against Earl King, obtained and entered under the following circumstances.
    An unsettled account existed between the plaintiff and defendant, and they, without any other authority than their own consent, called together three of their neighbours, to whom they agreed to refer their respective claims. After the parties had exhibited their accounts, on the one side and the other; in consequence of their conduct, one of the arbitrators proposed to separate, and alleged that the parties could settje amicably themselves. The parties then sat down and examined the accounts of each other, items on each side were agreed and objected to; it finally resulted in an agreement, that there should be a report of the arbitrators for $500 in favour of Robert T. King, against his father Earl King, $50 of which was to be paid in hand, and Earl King was to give a judgment upon the docket of John MCord, Esquire, a justice of the peace, who was also one of the three arbitrators present, for $450 with stay of execution till the death of the defendant Earl King. This arrangement took place at the house of Earl King, where John M‘Cord, Esquire, the justice made a note in writing of the amount agreed upon to be entered as a judgment upon his docket, and shewed it to the defendant, who was satisfied. The jtistice then returned home, and entered the judgment upon his docket, as agreed upon by the parties. A few days afterwards, Earl King called upon the justice to know if the judgment would carry interest, and upon being told that it would, he was dissatisfied with it. — A transcript of this judgment was entered upon the records of the Common Pleas of the county of Erie, was burnt with the court house, and its place supplied by a new transcript, entered by authority of the act of assembly for that purpose: and to revive which, and shew cause why execution should not issue, after the death of Earl King, this scire facias was issued to Fehruanj Tei-m, 1827. The defendant’s pleas were nul tiel record, — that the judgment was obtained by fraud — and payment, with leave to give the special matter in evidence. — The plaintiff replied non solvit — and no fraud.
    By a suggestion of the court, the defendants withdrew the plea of nul tiel record; the “plaintiffs counsel agreeing to the admission of parol evidence on the plea of fraud.”
    Much evidence was given on one side and the other, as to the mental capacity of the defendant, Earl King', to attend to his own business, at the time he agreed to the amount of the report which the arbitrators should make: all which was submitted by the court to the jury as a matter of fact.
    The court (Shippen President,) in their charge to the jury on the' subject of the alleged fraud, in obtaining the judgment, said, “ that no evidence of, or security for a debt could be framed or taken, which would preclude an inquiry into the transaction if fraudulent; and that this rule applied to the cause now trying; for if the jury believe that the judgment was obtained by fraud, in consequence of the mental incapacity of the defendant, it is void. That a confession of judgment of this kind, before a justice of the peace, for so large a sum of money, is dangerous; for the only place arid manner in which a judgment entered for a sum above a hundred dollars, before a justice and a transcript thereof filed, could be inquired into; would be on a scire facias to revive; when the question might be met — that there was no chance of relief for the defendant, unless the plaintiff is under the necessity of issuing a scire facias, and then the question might be met. That as the parties did not appear before the justice to enter the judgment, and as the justice merely took the admission of defendant, as to the amount of this judgment, at defendant’s house, where he was called as an arbitrator, and entered it in his docket when he went home, in such a manner as to carry interest from the date, when it does not appear so intended by Earl King, it is not a good, binding judgment under the act of assembly.”

      The jury returned the following verdict — “That they find for defendants, on the ground of the judgment being void and illegal, and not on the plea of fraud,”
    In this court the following errors were assigned:
    1st. The plea of fraud was impertinent and illegal.
    2d. The court erred in charging the jury, that the merits of the judgment could be investigated, and the judgment annulled, on the ground of fraud, in the scire facias suit.
    3d. The court erred in charging the jury, that the judgment was not a good and binding one under the act of assembly.
    4th. The jury having found that the judgment before the justice was not obtained by fraud, could not find by their verdict that it tras illegal and void.

      Selden for plaintiff in error.
    The only question to be decided is, whether this judgment is illegal or not. By reference to the 14th section of the act of 1810, (Purdon’s Digest,) it will be seen, that the proceedings in obtaining this judgment, havp strictly conformed to the provisions of that act; and .what it was that induced the court to instruct the jury that this was not a valid and binding judgment, is difficult to determine. The merits of the original judgment cannot be enquired into on a plea to a scire facias: — the cases in which judgments have been overhauled,’ is for’ something occurring since the entry of the judgment. I had thought that the adjudication of the case of Bentoji v. Bur got, 10 Serg. Ramie, 240, was decisive. There the plaintiff replie'd to the first plea, that there is such a record, and demurred to the second, viz: that it was obtained by fraud, &c. The court overruled the demurrer, but this court on a writ of error said, that evidence of fraud, imposition, mistake, and want of consideration, is bad on demurrer. JVul tiel record is the only plea of which the defendant can avail himself. Also the case of Cardesa v. Humes, 5 Serg. fy Rawle, 65, in which the court say “ that under no circumstances can the merits of the original judgment be inquired into by the defendant, on a scire facias, so as to enable him to set up a defence which he might have used in the original suit.” The court may open the judgment, but in no other way can their equitable power be interposed.
    The objection raised by the" court below, was that the judgment was not entered at the justice’s office; he took a note of it; he showed it to Earl King; he was satisfied. The court further say, it was not entered according to the intent of the parties; we have the certificate of the justice that it was. It then was a mistake as to interest; that mistake will not invalidate the judgment.

      Sill for defendant in error,
    was requested by the court to confine his remarks to the third error assigned.

      By the act of assembly under which this judgment is entered, a limited authority is given to justices of the peace, and it must be strictly pursued; and a judgment entered by authority of that act- and not in conformity with its provisions, is void. Alberty v.-Dawson, 1 Bin. 106. Brenneman v. Greenewalt, 1 Serg.- fy Rawle, 30. The act provides that the parties shall voluntarily appear befóte him for the purpose, when the judgment is to be entered for a sum exceeding one hundred dollars;' — in this case the parties did not appear before him at a place where he had the means of doing those things which the act requires .of him; and it \vould be unsafe and injudicious, to render valid the proceedings of a justice,' which had been subjected to the uncertainty of' a treacherous memory. So careful has the legislature been to guard against looseness and carelesness, in the administration of the law, that it has been provided that a justice shall- not keep his stated office in a tavern. The facts exhibit the danger of such looseness, as has been practised in this case. The justice either forgot or mistook, the terms upon which the judgment was agreed to by Earl King; for it was not his intention that the judgment should carry interest during his life, or be satisfied by any thing but property when he was dead.
    A misdirection of the court upon matters of fact, is-not assignable for error. Rouvert v. Patten,-1-2 Serg. Sf Rawlef 253. Long, v- Ramsey, 1 Serg. Sf Rawle, 72.

      Banks on the same side, whom the court declined to hear.

      Dmiclcson, in reply.-
    On the plaintiff’s consenting to withdraw the plea of nul tiel record, and the plea of fraud being, entered,-it was not in-tended by either party, or contemplated by the court, that- the' regularity or validity of the judgment as entered by the justice,should be inquired into, but merely the consideration of that judgment; as it was alleged that the plaintiff had taken advantage of the defendant, then an aged man, and in his dotage: which fact, if it should be established to the satisfaction of the jury, it was agreed under the plea of fraud,- should authorize them in finding for the defendants.- But even if, from the pleadings, it- should be considered that it was intended to- submit the regularity of the judgment before the justice to the jury, for them to pass upon,, their privileges and duties were infringed upon by the court,-when they stated to the jury in positive terms, that the judgment was-void and illegal; which must have been on an assumption of facts, of which the court was not competent to judge. If however, the court below was authorized from an inspection of the record, in saying’that the 'judgment was1 void and illegal, then it was the province' of this court to examine and ascertain,- whether' there was any thing to justify a decision of the kind. The principle of law is established and undeniable, that the court and the jury have each their respective duties, the one to decide questions-of law, and the ©ther those of faet: hut here it was a difficult matter to say, whether this had been adhered to, for the court can only judge from -inspection, and not from parol evidence, whether there is a record. And although there was no denial of the record, the court say there was none; and the jury after finding that there was no fraud, assume the prerogative of the -court’s power, and in its language, respond that the judgment was void and illegal; which, if the fact was so, there was no necessity of a finding by the jury at all.
    By the act of 1810, under which this judgment was entered, justices of the peace are authorized to enter judgments for any amount, when confessed by the parties. Here it does not appear that the parties appeared before the justice at his office, to enter the judgment, but that which was all material to the rendering of one, viz: the agreement to the sum, the stay of execution, the consent of the defendant, and his directions to the justice, then, within his district, to enter the judgment; and the subsequent and actual entry by the justice, was fully complied with: and any evidence there was, that the judgment was not to be paid in money, but stock, and no interest* to accrue in the mean time, and declarations of the defendant, subsequent to the entry of the judgment, could have no effect "to defeat the rights of the plaintiff: and even if the facts had been so, it was making the justice a party to the fraudulent transaction; — as fraudulent it must have been in him, to enter a judgment contrary to the parties’ agreement; and would have justified the jury in finding a verdict for the defendant under ¿he plea of fraud.
   The opinion of the court was delivered by

Gibson, C. J.

The irregularity of inquiring into the validity of the original judgment in the trial of the scire facias, was waived by the plaintiff, who, in agreeing to the admission of parol evidence of the alleged fraud, consented to a trial on the merits; and as the jury have negatived the fraud, the only assignment of error that can be urged, is that which relates to the direction with respect to the objection depending upon legal grounds. Evidence having been given that the parties being at the house of a third person, and before arbitrators, of whom the justice was one, compromised their dispute, the defendant agreeing to confess judgment for a sum certain; and that the justice having, with the assent of the defendant, made a memorandum of the terms, entered it on his docket at his return home; the court instructed the jury that a judgment thus rendered, is illegal and invalid.

A court is defined to be a place where justice is judicially administered; and a justice of the peace, being a judicial officer, must necessarily have his court or place of administering justice. That the matter has been so regarded by the legislature, is clear from the act of assembly by which he is forbidden to keep his “ stated office” in a tavern. It is difficult to conceive of the office of a judge, without at the same time, associating with it the idea of a place for the performance of ifs duties, The judgment was however actually rendered at the justice’s office. But were the parties before him there? That is not pretended: but, it is said, the confession of the defendant was received when they were actually before him. That brings the argument back to the point from which it started, the receiving of the confession being as much a judicial act-as the recording of it. But jt is said the justice acted under a previous authority. It has been determined, however, that a warrant of attorney, which js quite as operative as a parol authority, is altogether insufficient, The act of assembly which gives him' a qualified jurisdiction, requires the parties to be before him; and the abuses that might otherwise be practised, are sufficiently obyious to require him to be held to the letter of his authority. In the instance before us, the defendant disputed the correctness of the entry at the moment it was shown to him. Had he been present when it was made, there would have either beqn np cause or else no room for cavil.

The judgment below is therefore to be affiriped; but the effect of it is not so easily determined. The verdict has not disposed of the demand, but merely of the original judgment. By agreeing to put this matter in issue on the trial of the scire facias, the parties have created difficulties which perhaps they did not anticipate. If the proper judgment on the verdict be, that the original judgment be reversed or vacated, then the scire facias is in substance a writ of error on the part of the defendant, who in contemplation of law demands nothing by the writ; and in giving effect to the agreement of the parties, I am unable to see how we can escape from giving it this preposterous effect, I am not, even yet, certain that we ought not to reverse it for the irregularity, and leave the defendant to start a second time from the proper point, whence his course would be a plain one. A transcript entered on the docket of the common pleas, is, as regards real estate, virtually a judgment of that court, (Brannan v. Kelley, 8 Serg. & Rawle, 479.) consequently it may be set-aside on motion, with or without an issue, where it has been obtained surreptitiously; or it may be, only opened to let the party into a defence when he has missed his time either by accident or mistake; a practice extremely beneficial and founded on the chancery powers which our courts are in the daily habit of exercising. The matters however which constitute the defendant’s title to relief, must have existed previous to, or at the time of rendering the judgment. If they be subsequent, the court will not interfere in a summary way, further than to stay the execution, because they may be pleaded to a scire facias, which if it be necessary, the plaintiff will be ordered to bring. A neglect of this distinction, sometimes produces confusion and inconvenience, and at all times evinces slovenliness of practice. ¡Here the matter complained of, existed at the time of entering the judgment, consequently the proper course was an application to have the judgment set asjde; hut as the defendant has succeeded by .an irregular course, adopted it would seem by agreement, he is entitled only to the advantages that might have been obtained in a regular way. The original judgment will therefore not stand in the .way of a fresh action.

.Judgment affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    DARRAH against WARNOCH.
    IN ERROR.
    in a case which originated before a justice of,the peace, from whose judgment there was an .appeal to the common pleas, where a verdict and judgment was rendered for a sum exceeding the jurisdiction of the justice, this court affirmed tlie judgment upon ,the plaintiff’s releasing the excess.
    This writ of error was issued to the court of common pleas of Beaver county, upon the return <of which, the record showed the proceedings in a suit, which originated before a justice of the peace, wherein James Warnoch was plaintiff and Robert Darrah' was defendant. It was brought to recover the amount of a judgment, which the defendant Darrah, had had against one Johnston, and upon which he received the money from the defendant Johnston, after he had transferred it to the plaintiffin this suit, James Warnoch.

    On the 28th July, 1827, the justice rendered judgment for the plaintiff for eighty-three dollars and sixty-two and a half cents debt, and sixteen dollars and thirty-seven and a half cents interest, making one hundred dollars: from which judgment the defendant appealed. A declaration was filed containing two counts, the first a special one, and the second for money had and received. Pleas non assumpsit infra sex annos, and payment with leave, &c. Replication that he did assume within six years, and did not pay. Issues.
    On the 15th January, 1828, a verdict and judgment were rendered for the plaintiff for one hundred and fourteen dollars and ninety-nine cents.
    The error assigned in this court was that the cause of action was not within the jurisdiction of a justice of the peace, the recovery being for more than one hundred dollars, and interest thereon.

      Fellerman for the plaintiffin error.
    The law is well established that it is error to institute a suit before a justice, if the cause of action exceeds his jurisdiction. Hinds v. Willis, 13 Serg. Sf Rau-lc, 214. Moore v. Wait, 1 Bin. 219. Owen v. Shelhamer, 3 Bin. 45. Laird, v. M‘Conachy, 3 Serg. <Sf Razóle, 290. The verdict and judgment in the common pleas, were rendered for one hundred and fourteen dollars and ninety-nine cents, within six months of the time when the judgment of the justice was entered: by which it is manifest that the cause of action when the suit was instituted, exceeded the jurisdiction of the justice.

      Forward and Moore for defendant in error.
    In the case of M‘Entire v, MElduff, 1 Serg. Bawle, 19, this court decided, that if the judgment of a justice, be for a sum within his jurisdiction, and on an appeal to the common pleas, judgment be given for a sum above his jurisdiction, the judgment of that court shall not be arrested, unless it appear, that the cause of action was different. See also MKinley v. M‘Calla, 5 Bin. 600.
    The jury had it in their power, and might have given something to the plaintiff, as damages to compensate him for vexation, and to coyer the expenses of the appeal.

      Fetterman in reply.
    In the case of Kingston v. Lee, (not reported) this court reversed the judgment, because the damages laid in the declaration exceeded the jurisdiction of the justice, before whom the suit originated.
    This was an action of assumpsit, and there could have been no damages allowed beyond the interest of the claim.
   Per Curiam.

The case is with the plaintiff both on principle and authority. As regards the cause of action, the proceedings, on appeal are not de novo; and the plaintiff can recover no more than he might have recovered before the justice. A judgment for more would be decisive either that the action was improperly commenced or improperly prosecuted. A plaintiff may undoubtedly remit a part of his demand, to bring the residue within the jurisdiction of a justice; but, having done so, he must proceed consistently, and cannot set up on the appeal the part that hé had previously abandoned. So that when the judgment on the appeal is for a greater sum than could have been recovered before the justice, it involves the plaintiff in the dilemma either of having sued for too much originally, or of having recovered what he had previously released. But as he might have released the excess below, and as there is an increasing liberality in courts of error, we think it reasonable to-afford him an opportunity to do so here.

The plaintiff instantly released the excess at the bar, and the judgment was affirmed.


text:
    JOHNSTON against PERKINS.
    IN ERROR*
    A. brings an action Of assumpsit before a justice of the peace against B. and recovers a judgment for a certain sum, from which B; appeals: the cause being afterwards tried in the condition pleas, a verdict and judgment was rendered, in favour of A. for the same sum* Held that A. was entitled to recover his costs since the appeal*
    This record was returned upon a writ of error to Crawford county.

      James W. Perkins brought'a suit before a justice of the peace against James Johnson-, and recovered a judgment on the 27th March, 1824, for fifteen dollars; from which Johnston appealed. The cause was afterwards tried in the common pleas, and on the 15th November, 1825, a verdict was rendered for the plaintiff for fifteen dollars. A motion was then made that judgment should bo entered without costs; which the court on argument dismissed, and entered judgment generally for costs. — This was assigned for error in this court.

      Selden for plaintiff in error*
    The defendant obtained a more favourable’ judgment than that of the justice, because if the interest to which the plaintiff would be entitled was added, the sum would be greater than fifteen dollars.

      Deri-ickson for defendant in error,
    was stopped by the court.
   Per Curiam.

We cannot say that any part of the judgment was made up of interest since the appeal* or that the appellant succeeded to the amount of a farthing. The interest being a small’ matter, the plaintiff may have abandoned it: and although a contrary presumption might be made to support a judgment, it cannot to reverse one. The judgment for costs is not only possibly, but probably right; and we are not to reverse on suspicion of error.

Judgment affirmed.


author: Smith, J. Huston, J.

text:
    ELLIOTT for the use of STANARD against CALLAN.
    If one wlio is about to receive the assignment of a single bill, calls upo* the payor to know whether he will pay the money,-and is informed by him that he will; he cannot afterwards set up any defence against the payment of the moiiey to the assignee,- which existed previous- to such-declaration.
    Writ of error to- the court of common pleas of Indiana county: the plaintiff in error'was the plaintiff below. On the 8th July, 1822, the defendant James Callan, appeared in! person and confessed judgment to the plaintiff James Elliott, for the use' of Daniel Stanard, for the sum of three' hundred and thirty-six dollar^ and thirty-seven cents. — On the 26th September1, 1826, the defendant obtained a rule to shew cause why the judgment should not be opened and he let into a defence: which on the 17th March, 1827, was made absolute. Upon the trial of the cause, the plaintiff gave in evidence the single bill upon which the suit was founded, for three hundred dollars; dated 6th March, 1820, payable 1st July, 1822,- with interest from the 1st July,-1821, together with the transfer thereof to Daniel Stanard. It was admitted, that the consideration of the said single bill was a conveyance of two out lots in the borough of Indiana, Nos. 1 and 2; by James Elliott and wife, to James Callan.

    The defendant then gave in evidence a deed from- James Elliott and wife to James Callan, dated 6th March, 1820, for out lots Nos. 1 and 2: and also the exemplification of a mortgage from James Elliott and wife to Joseph Brouns'on, executor of William Smith, deceased, dated 22d November, 1819, and recorded the 15th May, 1820, within six months from its date. It also appeared that this mortgage was given to' secure the payment of á bond which bore even date therewith, conditioned for the payment of two hundred and forty two dollars and fifty-one cents, to the said Joseph Brownson, by the said James Elliott and Joshua Marlin, who was his security.
    On the 19th February, 1822, James Callan and wife conveyed the said two lots to Joshua Marlin; and Joshua Marlin and wife, by deed dated the 29th of January, 1823, conveyed the same to Thomas Sharp.

      William Banks, Esquire, was then called' as a witness, and testified that the bond of James Elliott and Joshua Marlin had been sent to him for collection; that it was the same money for which the mortgage had been given; that Elliott was insolvent, and he applied to Marlin for payment, who at first refused, because Brownson had not entered up the mortgage, as he alleged he should have done; but afterwards he paid the money, and Mr. Banks, by virtue of a power of attorney, entered satisfaction on the margin of the record of the mortgage, on the 10th of August, 1827.

      The plaintiff then called James Elliott, as a witness, who said, “Daniel Stanard was an attorney of this court, and had several ' claims against me for collection, to the amount of three of four hundred dollars. I told him I had a single hill on James Callan, I would give him in payment if he would take it: he said he would agree to. take it, provided Callan was agreed to it, I then went to Mr. Callan, and asked him if he had any objections to my transferring his single bill to Mr. Stanard, and told him that perhaps Mr-. Stanard would give him more time than I could, as I was pressed. Mr. Callan then came with me to Mr. Stanard, and in his presence, he agreed that I should assign the single bill to Mr. Stanard, and said he had no objections, and that he would pay it: my impression was that Mr. Stanard gave me receipts on the docket. I know he released me from the payments of money — he never called on me since: — One case was JVourse of Baltimore, and MKinslry was another case; I do not think I ever told Mr. Stanard of the mortgage— Mr. Stanard agreed to take the single bill as a payment of the claims which he had against me, and settled with me for the whole amount thereof. I paid him the balance in money about a year afteru^rds —Mr. Marlin was only my bail in the bond. I do not recollect that I told Callan of the mortgage at the time I sold to him. The single bill was assigned in Callan!s presence to Mr. Stanard-.

    The plaintiff’s counsel requested the court to instruct the jury, that if they believe that James Callan, at and immediately before the assignment, knew that Daniel Stanard was about to purchase and take an assignment of said single bill, and did then and there inform said Daniel Stanard, that he was willing he should purchase and take such assignment, and that he would pay the same, or had no objection to make against the payment of the same — and that in consequence of said declaration, said Daniel Stanard did then and there purchase and take an assignment of said single bill, bona Jide, and for a valuable consideration; said James Callan cannot in this action set up as a defence, the fact of an existing mortgage, given by said James Elliott on the premises, which was the consideration of the said single bill. ’ '
    2d. If the jury believe that Joshua Marlin on the- 29th July, 1823, sold the mortgaged premises to Thomas Sharp, and afterwards on the 14th June, 1827, paid the amount of the money due thereon to the mortgagee, who by an^ittorney in fact entered satisfaction upon the margin of th,e record' of the said mortgage, oh the 10th August, 1827 — the defendant cannot set up said mortgage as a defence in this suit to the payment of his single bill.
    Whereupon the court, (Young President,) charged the jury, as follows:
    The defence to the recovery of the bond in question, is what is ' usually termed an equitable one, founded on an alleged failure of the consideration to the extent of two hundred and forty-two dol lars and fifty-one cents, with interest thereon from the 1st of March, 1823. It appears that James Elliott executed a bond, with Joshua Marlin as his surety, and a mortgage dated 22d November,-1819, to Joseph Brounson, on two out lots, for securing the payment of that debt; he afterwards sold and conveyed those out lots to the defendant, with covenant of general warranty by deed dated 6th March, 1820. The mortgage was not then recorded, but was within six months from its date, and became a lien on the property from that date — it was an incumbrance which Elliott was bound to remove; and having failed in this, it is admitted by the .counsel for the real plaintiff, Mr. Stanard, that the defence would have been good as against Elliott, but he contends it is not available against his assignee, who it is alleged purchased the bond bona fide, for an adequate consideration, and with the knowledge and consent of the defendant himself. So far as it respects the last matter, it depends entirely on the testimony of Elliott, whose bias appears pretty strong in favour of the assignee, and whose confidence in him seems also to have been unlimited; he made the assignment in satisfaction, as fte stated, of various claims on him, for moneys he had collected as sheriff, for Mr, Stanard’s clients, without taking a receipt for any one of them; his first impressson was that Mr. Stanard entered receipts on the docket; towards the conclusion of his testimony he stated, that Mr. Stanard generally receipted on the docket, as he, the witness, understood. There is no evidence of any receipt, and not even of the memorandum which was taken of the claims, at the time of this transaction: taking the whole of it into view, with his concealment of the mortgage, on that occasion, and- so far as it appears on every other, the credit of the witness, to say the least of it, is not superior to exceptions; That subject, however, is for your consideration, rather than that of the court. If you are are not satisfied with the relation he has given:' if,in fact, you believe no-valuable consideration passed from Stanard to Elliott at the time of the assignment, the weight of the reasoning founded on it falls to the ground. But admitting a valuable consideration did pass, unless you are further satisfied, that when (as it appears from jElliott’s testimony) the defendant agreed to the assignment, which was executed in lais presence; this ought not to be considered as an undertaking to pay the bond at all events, if he was then ignorant of the mortgage. But it is said that Callan said he Would pay it; Elliott being called again stated that Callan did so say. — Were you to believe this, you ought to take into consideration the circumstances under which the declaration was made. There is certainly no testimony of his haying been then cognizant of the mortgage; nor until some short time before the motion at September term, 1826, for opening the judgment, which the defendant had confessed.
    Mr. Banks stated it was about a year before he received the money, which was on the 27th June, 1827; that the bond wa* transmitted to him from Brounson in Baltimore: the existence of the' mortgage was then but little known to any one; and the first notice of* it seems to have been communicated by Mr. Marlin, who was alarmed for fear the mortgage had not been put on record; this led Mr. Banks to search, and having found it recorded, Mr. Sharp who had purchased from Marlin, became also uneasy: his willingness to the making of the assignments, (or as it is otherwise called in the paper on which the court is requested to instruct the jury,) his making no objection to the payment of the same, or even saying he would pay it, if ignorant of the mortgage, ought not under such circumstances to avoid the defence now set up. As to the remaining point: — I am of opinion, that Joshua Marlin, having sold the mortgaged property to Thomas Sharp with general warranty, was justified in paying off the incumbrance, to release himself from an action at the suit of Sharp, An action on the mortgage (which was in contemplation,) would have been the consequence, unless the money had been paid, as has been testified by Mr. Banks. These legal proceedings would have been attended with costs and expenses, which it was the interest of all parties to avoid, and particularly that of Mr. Marlin. It seems there is a balance due on the bond in question, after deducting the principal and interest on the mortgage; that balance the plaintiff is entitled to recover. Having given our sentiments upon the evidence, and our opinion on the questions of law proposed, the whole is now left to your consideration.
    In this court the following errors were assigned to the charge of the court below, to the jury:
    1st. In charging the jury that “ admitting a valuable consideration did pass from Stanard to Elliott for the assignment of the single bill, and the defendant agreed to the assignment, which was executed in his presence; yet this ought not to be considered as an undertaking to pay at all events, if he was then ignorant of the mortgage.”
    2d, In charging the jury, “ that the willingness of the defendant, to the making of the assignment, or his making no objection to the payment of the single bill, if ignorant of the mortgage, ought not, under such circumstances, to avoid the defence then set up.”

      Foster and Baldwin for plaintiff in error.
    If an obligor assents to the assignment of his bond, without giving notice that he has a defence against it, he is concluded, and must pay it to the assignee, under all circumstances. Carnes v. Field, et als. 2 Yeates’ Rep. 541. Ludwich v. Crall, 2 Yeates’ Rep. 565. Davis v. Barr, 9 Serg. Sf Rawle, 137. Weaver v. M‘Corkle, 14 Serg. 4* Rawle, 304. If an assignee be induced to purchase a bond, in consequence of representations made by the obligor that he has no defence, or is willing to pay, the obligor cannot set up against the assignee any equity, of which he might have availed himself against the obligee, even though such communications were not made directly to the assignee, but ■merely communicated to another in his hearing. M‘Mullin for use, v. Winner, 16 Serg. Rawle, 18. 1 Wash. Rep. 299.
    The confession of a judgment by Callan was a new promise to the assignee.

      White and Alexander for defendant in error.
    It is admitted, that between Callan and Elliott the defence to the payment of the bond would be a valid and substantial one; and this assignment amounts to nothing more than a transfer of the single bill, by Elliott, who was a sheriffof the county, to Mr.Stanard, an attorney of the same court, for the security of his clients, who were creditors of the sheriff: if is not therefore a case of a bona fide purchase with the assent of the obligor; and therefore the authorities cited for the plaintiff in error are not applicable. The whole aspect of this case shows that no valuable consideration passe dfrom Stanard to Elliott, but that the single bill was transferred as a collateral security.
    In the case of Burke v. Allen, 3 Yeated Rep. 356, it is determined that although a new promise be made, to the assignee, yet ‘Hgsior(i?itia juris excusatJ

   The opinion of the court was delivered by

Smith, J.

In the court below this was an action of debt, o» a single bill, given by James Callan to James Elliott, dated the 6th. of March, 1820, payable the 1st of July, 1822,- and equitably assigned to Daniel Stanard, the 15th of June, 1822. On the 8th July, 1822, the defendant in person confessed a judgment to the plaintiff for three hundred and thirty-six dollars and thirty-seven, cents. On the 26th September, 1826, a rule to shew cause, why the judgment should not be opened, was obtained,"which on the 17th of March, 1827, was made absolute, the judgment to remain a lien in the mean time. The cause was tried on the 24th of December, 1828, when a verdict and judgment were rendered- for the defendant.

On the trial it was admitted that the single bill has been given in part of the consideration of two out lots in the town of Indiana,' sold by Elliott to Callan, and the record of a mortgage, dated the 22d of November, 1819, duly recorded, from Elliott to Joseph Brounson, executor of William Smith, deceased, on the same lots, was given in evidence by the defendant, who contended, that he was not liable to pay the bill, as the consideration of it had failed..

The plaintiff then proved by James Elliott, “ that he went to Callan, and asked him if he had any objection to a transfer of his bill to Daniel Stanard: that on this Callan went with him to Stanard,. and in the presence of'Stanard agreed that he should assign the bill_ to Stanard, and said he had no objections, and would pay it.”

Before the cause was submitted to the jury, the plaintiff’s counsel presented certain propositions to the court, and requested them, to instruct the jury, “ That if they believed, that James Callan, at and immediately before the assignment, knew that Daniel Stanard was about to purchase and take an assignment of said single bill, and did then and there inform said Daniel Stanard, that he was willing he sho'uld purchase and take such'assignment, and that he would pay the same, or had no objections to make against the payment of the same — and that therefore in consequence of said declaration, said Daniel Stanard did then and there purchase and take an assignment of said single bill, bona fide, and for a valuable consideration,, said James Callan cannot in this action set up as a defence the fact of an existing mortgage given by James Elliott, on the premises, for part payment of the purchase money of the premises, for which said single bill had been given.” The court thereupon instructed the jury, “ That admitting a valuable consideration did pass, unless they were further satisfied, that when (as it appears from Elliott’s testimony,) the defendant agreed to the assignment, which was executed in his presence, this ought not to be considered as an undertaking to pay the bond at all events, if he were then ignorant of the mortgage.”

And the court further instructed the jury, that “ his willingness to the making of the assignment, (or as it is otherwise called in the paper on which the court is requested to instruct the jury,) his' making no objections to the payment of the same, or even saying he would pay it, if ignorant of the mortgage, ought not under such circumstances to avoid the defence now set up.” To this charge the plaintiff excepted, and has assigned two errors arising on the same.

If any principle of law can be considered as settled, or ever can remain settled, it Is this — that the assignee of a bond or single bill,, takes it subject to all objections, which the obligor could legally' make. He comes in the place of the obligee, and cannot stand in a different or better situation. So early as 1776, in the case of Whaler assignee of Baynton, v. Huzes’ executors, we find in our earliest reports, 1 Dall. 23, this principle laid down by an able judge and great lawyer. And in our latest books of reports, 14 Serg. and Rawle, 306, the same principle is again recognized; and in a still later case, Rudy and wife v. Wenner, reported in 16 Serg. & Rawle, 18, it was declared that the assignee of a bond, whether the assignment be legal or equitable, takes it at his own peril, subject to every defalcation which might have been made against the obligee by the obligor, at the time of the assignment. But there is-an exception. If the assignee previous to the assignment, applies to the obligor, informs him he is about to take an assignment of the bond, and inquires of him, if the money the bond calls for was due, and the obligor declares it is, he is estopped from denying it afterwards; for the obligor by such or similar declarations, promotes and encourages the assignment, and thereby precludes himself from the benefit of the right he would have had against the bond originally. His admissions operate virtually as a new contract between himself and the assignee. This exception is as well established, as the rule itself, in the cases above referred to, and in many more. The case cited by the plaintiff’s counsel, (Mr. Baldwin,) from Wash. Rep. 296, Buchner and others v. Smith and others, is strong, perhaps stronger than the one under consideration, and in my opinion is decisive of it. There a bond had been given for a gambling debt, I believe for twenty-five thousand pounds of tobacco. This bond was afterwards assigned, and an action brought upon the bond, and judgment confessed by the defendant after he came of age. The assignee proved that he was induced to accept of an assignment of the bond by the obligor, who assured him that the bond should be punctually paid. And the court there said, the principal objection is, that this is a gaming debt, contracted by an infant, which no subsequent act of his, nor any transfer, could make valid.

It is in general true, that an assignee of a bond of this sort, can be in no better situation than the obligee, and the cases cited at the bar sufficiently establish the point. But the present case is very different upon principle from those cases, and that difference is produced by the obligor’s conduct, who by his assurances of payment, induced the asssignee to receive an assignment of it. He not only concealed from him legal objections to the bond, but afterwards assumed to .pay it, and when sued, voluntarily confessed a judgment.” This case was, in a great measure, afterwards recognized by the court in Elliott’s executors v. Smack, 390 of the same book.

On these principles, we think the court below erred, when they instructed the jury, that admitting a valuable consideration did pass from Stanard to Elliott, for the assignment of the single bill, unless the jury were also satisfied, that when the defendant agreed to the assignment, which was executed in his presence, it ought not to be considered as an undertaking to pay at all events, if he were then ignorant of the mortgage. And they moreover erred in informing the jury that the willingness of the defendants, to the making of the assignment, his making no objections to the payment of the same, or even saying he would pay it, if ignorant of the mortgage, ought not, under such circumstances, to avoid the defence set up.

Stanard, the equitable assignee, on the 15th of June, 1822, before he took an assignment of the single bill, and before it was due, asked, the obligor if he was satisfied, he should purchase and take an assignment of the same, and whether he had any objection to make against its payment; he replied, he was satisfied such assignment should be made, and had no objection to the payment thereof, and moreover said he was desirous Stanard should purchase and take an assignment. I would ask, what could Stanard do more? All precedent measures were pursued before the transfer was accepted by him; the party who sealed and delivered the instrument was called on, a full and complete opportunity given to object, if he had any objections; but instead of objecting, answers that he is satisfied, and expresses a wish, that Stanard should take the assignment. It is therefore evident that the assignee was induced by the obligor to take the single bill, and part with his money for it. When Stanard applied to the debtor, he had a right to suppose, that he was cognizant of every thing which had given birth to the obliga-, tion, and that if a defence to it existed, he could and would inform him of it; for this purpose he made the application to him; he is not forbidden by the objector to purchase, but on the contrary is encouraged to do so. Under such circumstances, the obligor’s conduct, whether it procéeded from ignorance or design, must fee considered as an undertaking to pay. If there be a hardship in the matter, (for instance the existence of a previous mortgage unknown to the obligor, as is alleged) the obligor would be bound, for by his solemn assurances of payment, he induced the assignment; by his Concealment of all objections to the bill,, he, in fact, promised anew to pay it, and when sued, voluntarily confessed a judgment. We therefore think the plaintiff in error has sustained his exceptions, and that the judgment of the court of common pleas should be reversed, and a venire facias de novo awarded.

Huston, J.

Agreed to the general principle, but thought the facts of this case did not probably come within it. Here it was Elliott who went to the defendant to procure him to make the promise to Stanard. Here Elliott received nothing from Stanard; he was indebted to some of Stanard’s clients, and assigned this bond in full for their use, though it was not stated so to be. If the jury should find the -facts to be so, it is still Elliott’s bond, and the money when collected, goes to his use and to pay his debts; and in that case the principle would apply, and the defence was not a good one.

Judgment reversed, and a venire facias de novo awarded.


author: Smith J.

text:
    JOHN CHESS against FINLY CHESS, WILLIAM CHESS, WESLY CHESS, ANDREW CHESS, NELLY CHESS and MARY CHESS.
    Declarations- of a grantor made subsequently to the execution of a deed, can not be given in évidence to invalidate that deed.
    But when the question to be determined by the jury, is whether the grantor' was sane or ináane, at and about the time the' deed was executed, it is competent to give in evidence his declarations made soon after the exeeu-tion-of the deed, for the purpose of proving imbecility of mind.
    A man’s neighbourhood is co-extensive with: his intercourse among his fellow citizens. One witness, therefore, testified that he knew the general character of another witness, whose character was in issue, but hte did not know his character in his immediate neighbourhood. It iscom'petent to ask the witness whether he would believe him1 on his oath.
    A deed procured by actual fraud, is void,, and cannot be confirmed by subsequent acts or declarations of the grantor.
    ■ A delivery is essential to the proper and legal execution' of a deed', and. that delivery may be to the party,- to one authorized by the party to receive it,- or to a stranger for the use of the party; but the placing a deed on record by the grantor,-is not an absolute delivery,- but only evidence of it, of which the jury may judge.
    The court sustained the challenge of a juror, on' tlie ground that he. was subpdánaed Us1 a witness to impeach the Credit of another important witness, who was to give evidenee'in the caüsfe.in which-he was called as,a juror; which was- held to be no error.
    This- was an action of ejectment brought to recover a tract of land in Allegheny county, and was tried at a circuit court held for that county by justice Rogers.
    Both plaintiff and defendants- were children of William Chess',> deceased, and both claimed the land under their father; the plaintiff, by a deed dated the 14th February, 1823, and the defendants.as heirs at law.-
    It was contended by the defendants, that the deed to the plaintiff, from William- Chess,- his father, was void;- in consequence of the mental incapacity of the grantor to make a deed on the 14th February, 1823, and that it was obtained by fraud. It was answered-by the plaintiff that the grantor was of sound mind when he made-the deed, that it was not obtained by fraud, and that subsequently to its date, it was confirmed by acts of the grantor.

      William Kerr was called as a juror, and objected to by the defendants, on the ground that’ fie was a witness in the cause, subpoenaed by the plaintiff, t’o give evidence on his behalf; and who-had given evidence on a former trial as to a material matter- The-court sustained the objection; and the juror when sworn as a witness, testified to the character of John Ross, another witness, whose-veracity was impeached. During the progress of the cause, the defendants offered to give in evidence the declarations of William Chess, respecting the deed of the 14th February, 1823, to his son the plaintiff) made after its execution, which were objected to by the plaintiff) but admitted by the court.
    The following is the substance of the evidence given on this subject:

      William Kerns. — In the spring of 1823, a short time before his death, old William Chess came to my house; he sat down and looked as active as I ever saw him before.- We walked out together, and he asked me if I heard what his son John had done to him; I told him no: he then told me, that he had got a fall from his horse, and John was taking him to town to the doctors, and took him to sign a deed: he said that owing to the fall from his beast, he was not in his right mind when he signed the deed. He also stated, that John was to give him some property in town in exchange, but had not done so.- lie said that if John would not give him up the deed, he would compel him to do if. By giving the deed to John he wronged the rest of his family. — I have known William Chess long and intimately, and had never considered him of unsound mind.

      John Ross. — In April or May, after my return from over the mountains, old William Chess called on me, and told me he had come to see the lease I had written. I got it. and read it for him. I then asked him the reason he brought his family into so many difficulties, stating that on the 13th February he had given a lease for three years to his boys, and next day had given a deed for part of the same property to another son, who had brought suit to dispossess those he had leased to. The old man said he had been deceived by John. He requested a copy of the lease to shew to John, and said that then John would give up the deed. On the 7th May he called on me, and told me that John would not give up the deed; and requested me to go with him to John, and get him to do so.
    The plaintiff then called a great number of witnesses, who testified that the general character of John Ross in his own neighbourhood, for truth, was bad.
    The defendants then called witnesses in support of the character of John Ross; who testified, in substance, that they did not know his character in his own neighbourhood; that they lived two, three, and four miles from him, and had little intercourse there with the neighbours of Ross; that they had heard his character spoken, of where they lived and elsewhere, and that some spoke well, and some ill of him*
    The witnesses were then asked by the defendant’s counsel whether they would believe him on his oath, from what they kneyv of his general character.
    This question was objected to by the plaintiff’s counsel, but the court permitted it to he put, and the witnesses answered, “as far as I know him, I would believe him.”

      Other witnesses testified “ that they had known Ross a number of years — lived within three or four miles of him; that they did not know his character for truth in his own neighbourhood; that they had never heard it spoken of, one way or the other.” To whom the court permitted the same question to be put and answered, upon objection being made by the plaintiff.
    Other points arose, which will sufficiently appear in the reasons . assigned for a new trial, and the opinion of the court.
    A verdict was rendered for the defendants, when the plaintiff moved the court for a new trial, for the following reasons:
    1st. That there was error in admitting evidence of the declarations of William Chess, the grantor, after the execution of the deed in question.
    2d. In admitting the evidence of Samuel Thompson, Benjamin Darlington, T B. Dallas, George Evans, and others, in relation to the credibility of John Ross, whose general character had been impeached by the plaintiff, and of whose general character these witnesses had no knowledge.
    3d. In the court charging the jury, that if the deed of the 14th February, 1823, was invalid at that time, it could not be made valid by any subsequent act.
    4th. In the court taking from the jury the consideration of the question, whether the deed of the 14th February, 1823, was confirmed or made good by any subsequent act of confirmation, or by a new delivery at any time afterwards.
    ■ 5th. In charging the jury, that recording the deed was no delivery, but only evidence of it, of which the jury were to judge.
    6th. In sustaining the challenge, by defendant’s counsel, of William Kerr, a juror, on the sole ground that ho was a witness in the case.
    Which were overruled by the judge, and judgment was entered •on the verdict, from which the plaintiff appealed.
    In this court the cause was argued by Burke and Baldwin for appellant.
    1st. The declarations of a grantor, after the execution of a deed, cannot be given in evidence to invalidate that deed. And if there be'any reason for admitting evidence of the declarations of a testator in relation to a will made by him, that reason does not apply to the case of a deed: for wills are always revocable by the persons who make them, but deeds are not. A will is only consummated by the death of the testator, but a deed is consummated by delivery.
    2d. A witness must first state, that he is acquainted with the general reputation for truth, of the person |whose veracity is questioned, before he can be asked, or permitted to answer, the question, whether he would believe him on his oath. The law is well laid dnvtn on this subject in Kimmel v. Kimmel, 3 Serg. Sf

      Rawle, 336. Wike v. Lightner, 11 Serg. Sf Rawle, 198-9. Brindle •et ais. v. M‘Ivaine, 10 Serg. <$f Rawle, 485. Norris’s Peake, 197. Swift’s Ev. 148. 1 Stark. Ev, 148. 1 MNally, 304. Bull Nisi Pri. 296. Phil. Ev. 229. 3 Danes Dig. 346. 2 Gilb. Em. 296.
    3d and 4th. If William Chess had been incompetent to make a ■deed on the 14th of February, 1823, in consequence of weakness ■of intellect, and the deed was therefore invalid, yet by subsequent declarations and acts he might confirm it and make it valid; this he did do by exhibiting and reading it, and declaring to several persons that he had conveyed the land in dispute to his son. It was therefore manifest error in the court to decide that the deed could not be made valid by confirmation, and withdrawing the consideration of this part of the case from the jury. Cited Shales v. Sir John Barretigton. 2 Pr. Wills, 270. Murry v. Riggs et ais. 15 Johns. Rep. 573-586. Verplank v. Sterry, 2 Eq. Ca. Ah. 183. Verplank v. Sterry, 12 Johns. Rep. 552. Bennet v. Vade et als. 2 Atk. Rep. 324. Shaler v. Barrengton, 1 Pr. Wms. 482. Simms v. Slacum, 3 Cranch. Rep. 300. Fletcher v. Peck, 6 Cranch. Rep. 133. Jackscm ex dem. v. Eaton, 20 Johns. Rep. 482. Brooman v. Phelps, 2 Johns. Rep. 178. The Juniata Bank v. Brown, 5 Serg. Sf Rawle, 231 — 234.' Duncan v. MCullough, 4 Serg. Sf Rawle, 485. Wiseman v. Beake, 2 Vernon, 121. Baugh v. Price, 1 Wilson, 320. Smith v. French, 2 Atkins 244. Powel on Con. 163 — 193. Newlin on Con. 497 — 500. Colee Litt. 295-6. Parker v. Parmele, 20 Johns. 134. Yard v. Adlum, 1 Rawle Rep. 171 — 177»
    5th. The deed remained in the hands of the grantor after its execution, and on the 16th April, 1823, it was put upon record by him, which was, of itself, a delivery and confirmation; for it is not necessary to the validity of a delivery, that it should be made to the grantee; it may be made to a third person, and not in the presence of the grantee. Verplank v. Sterry, 12 Johns, Rep. 547-551. Jackson ex dem v. Phipps, 12 Johns. Rep. 421. 13 Viner’s Ab. 21. Souverbye v. Arden, 1 Johns. Chan. 255. Taylor et al v. Glaser, 2 Serg. Sf Rawle. 502. The recording of a deed by the grantor, under our recording act, is equivalent to a livery of seisin. Purd. Dig. 165. A delivery is essential to, and is the consummation of a specialty. Taylor et al v. Glaser, 2 Serg. fy Rawle, 503-4. Goodright v. Shaphen. Cowper’s Rep. 203. Shepherd’s Ton. 60. Perkins, 154. Inhabitants of' Worcester v. Eaton, 13 Mass. Rep. 374 — 5. Jenkin’s Rep. 166. Coke Litt. b. 48. Butler and Baker’s case, 3 Coke’s Rep. 36. Jennings v. Bragg, Croke Eliz. 447:
    6th. It is not a good cause of challenge, that the juror called, had given evidence on a former trial, or that he had been subpoenaed to give evidence on the trial to which he was called as a juror. Every juror in the box probably knew John Ross, and all might have been excluded on the same ground. On this point were •cited, Harper et al v, Kean, 11 Serg. Sf Rawle, 380. Parker v. Thorn-ion, 2 Lord Ray. 1410. 21 Fin. Ah. 268-272. Durell v. Mosher, 8 Johns. Rep. 347,

      Wilkins and Forward for appellees.
    1st. The declarations of William Chess, made after the execution •of the deed, were competent evidence for the purpose for which .they were given. We had shewn satisfactorily, as we believed, that he was incapable of making a deed on the 14th February, 1823; the plaintiff contended and endeavoured to shew, that even if the deed was invalid at the time it was executed, it became valid by the subsequent declarations and acts óf confirmation by the grantor. It therefore became important for us to shew, by his conduct and •declarations, after its execution, that he remained incapable of making a deed; and there is no better criterion by which to judge of a man’s intellect, than his conduct and declarations. The rule of law is well settled, that it is competent to give in evidence the declarations of a testator, both before and after the execution of 'his will, in order to shew imbecility of mind, or incompetency to make a will; and there is no difference in the cases of a will and deed, when the testimony is offered for the same purpose.
    2. All the witnesses examined as to the general character of John Ross, had previously known him for many years; they lived but four miles from him, and were perfectly competent to testify from their knowledge, whether they would believe him on his oath. Kimmel v. Kimmel. 3 Serg. Rawle, 336. Wike v. Lightner, 11 Serg. Sf Rawle, 198-9. Rr indie .et all .v, Mllvaine, 10 Serg. Rawle, ■285.
    3d. and 4th. That which is absolutely void can never be made valid. If the facts were merely, that William Chess was incapable •of making a deed on the. 14th February, 1823, in consequence of imbecility of mind, .a deed executed by him at that time, although ineffectual for any purpose, yet it might afterwards be confirmed. But that was not this case. Here it was alleged, and proved, that John Chess had obtained the deed from his' imbecile father by fraud ¡and imposition; it was, therefore, absolutely void, and no confirmation can r¿st upon the basis of fraud; there must be a new consideration. Murry v. Riggs, 15 Johns. Rep. 573. Duncan v. Findley, 4 Serg. Sf Rawle, 483,
    5th. The plaintiff’s title cannot rest upon the fact, that the recording of the deed was a good and effectual delivery of it, for it is disproved by the fact, that previously to that period, John Chess had brought ah ejectment to recover the land now in dispute, by virtue of this deed. But there was no evidence that William Chess put the deed upon record. It was a matter of fact to be left io the jury to be judged of.

      6th. Jurors ought to be perfectly impartial between the parties. In the cas.e of Harper .Sp Irvine v. Kean, 11 Seng. ¿p Ramie, 280, it is said, that if the testimony which the juror: has given, is such as to shew, that he has formed an opinion on one side or the other, he ought to be rejected: here the juror was to testify as to a fact of great importance, and one which had created a great deal of excitement in the cause, on the one side and the other. But even if ■the judge who tried the cause was wrong in rejecting the juror, yet it is not a good reason for a new trial.
    This is the second verdict which has been rendered for the defendants, and unless manifest injustice- is done,- the court will not ■grant a new trial. Willis’s Lessee v. Bucher, 2 Bin. Rep. 467. Kible’s Lessee v. Arthurs, 3 Bin. Rep. 26. Campbell v. Spenser, 2 Bin. Rep. 133. Hiester v. Lynch, 1 Yeates’ Rep. 1,08.
   The opinion of the court was delivered by

Smith J.

The long and warmly litigated cause of Chess v. Chess and others, -was tried at the last circuit court, at Pittsburg, before Mr. Justice Rodgers, and again'comes before this court for decision, on an appeal from the judgment of that .court. It is a family contest, and has not only been before the court of common pleas, and the supreme court of Allegheny county, but also heretofore before the circuit court; and like most family disputes, has engendered more ill blood than is usual in other controversies: indeed, in the present instance, this has not been merely confined to the parties immediately interested, but extended, as we regret to observe, to some of the -witnesses. The late trial, as well as a former one, was long and arduous, and after a most patient investigation, and an examination of many witnesses, which occupied the attention of Justice Rogers ten days, the cause was submitted, under his charge, to the decision of -the jury. The action is an ejectment, brought by John Chess against William Chess and others, to recover the possession of about one hundred and twenty-one acres of land, a part of a larger tract, late the estate of William Chess, deceased, father of the parties to this suit. The plaintiff alleges, that the tract of land which he claims, was conveyed to him by William Chess, his father, .on the 14th February, 1823, by deed. The consideration in this deed mentioned, is “ natural love and affection, and one hundred dollars.” The defendants allege it was-not so conveyed, and claim the land as heirs at law of the said William Chess, deceased; so that both parties claim under the same person.

At the trial, the defendants contended, that William Chess was generally and partially deranged; that he was of weak mind, and a fit subject of imposition and fraud; and that such was the case when he executed the deed to John Chess. The plaintiff denied this, and contended that his father was sane at the time; and further, that even if he had been insane on the 14th February, 1823, yet, that he afterwards, at a time when he was in his perfect senses, ratified and confirmed the deed, and that therefore he is entitled to recover the land. The jury found a verdict for the defendants, and the court refused to set it aside, and grant a new trial, but rendered a judgment on the verdict, from which the plaintiff has appealed to .this court, for the following reasons: — That there was error, 1st. In admitting evidence of the declarations of William Chess, the grantor, after the execution of the deed in question, as testified by John Ross, William Kearns and others. 2d. In admitting the evidence of Samuel Thompson, Benjamin Darlington, T. B. Dallas, George Evans, and others, in relation to the credibility of John Ross, whose general character had been impeached by the plaintiff, and of whose general character these witnesses had no knowledge. 3d. In the court charging the jury, that if the deed of the 14th February, 1823 was invalid at that time, it could not be made valid by any subsequent act. 4th. In the court taking from the jury the consideration of the question, whether the deed of the 14th February was confirmed by any subsequent act of confirmation, or by a new1 delivery at any time afterwards. 5th. Inf charging the jury that recording the deed was no delivery, but only evidence of it, of which jury were to judge. 6th. In sustaining the challenge, by defendant’s counsel, of William Kerr, a juror, on the sole ground that he was a witness in the cause. The exceptions or reasons for a new trial, have been very zealously and ingeniously argued by the counsel, and many authorities have been cited.

In regard to the first reason, it may be observed, that the principle is well settled, that no one shall be permitted to invalidate his own deed by his subsequent expressions: hence it is contended by the plaintiff, that the court before which the cause was tried, erred in admitting the declarations of William Chess, made after the execution of the deed to John Chess. " In reference to this part of the case, we ought constantly to keep in mind, what the real question before the court was, and under what circumstances the conversations of the grantor relative to other subjects, as well as to the deed, his declarations and acts, were admitted in evidence, and submitted to the jury. The insanity of the grantor was alleged on one side, and denied on the other; and the jury were called to say, whether William Chess was sane, or insane, on the 14th February, 1823. If, under such circumstances, I was required to decide upon the sanity or insanity of a person, I know not how I could do so, unless I was permitted to judge from his conversations, declarations and acts; these would be the only means to enable me to form a judgment. Here the defendants offered, and the court received, evidence of the conversations, the declarations and the acts of William Chess, not, as is supposed, for the purpose of verifying the facts stated in those conversations, hut to shew the state of his mind — not to effect his deed — not as declarations made contrary to it, after its execution; hut to shew imbecility of judgment, weakness of intellect and insanity; in short to show the true character of his understanding, on and about the 14th of February, 1823. This, and this alone, was the object of the evidence offered. The court did not decide that-the declarations of the grantor, after deed made, could be received to destroy it; but expressly said, that these declarations were admissable, not as revoking his acts done, but as the means o£ ascertaining whether William, Chess was sane or insane, weak or.' competent. On this point the parties were at issue; the defendants alleged insanity — it therefore became incumbent on them to prove it, since every one is presumed to be of perfect mind and memory, unless the contrary be proved. In this case the defendants pursued the proper course, and proceeded to prove William Chess’s insanity, by the very index of his mind, his conversations, declarations and acts, for which purpose they examined many witnesses. The plaintiff did the same, to prove his sanity, and thus there was brought before the court a mass of contradictory evidence, all of which was fairly and legally submitted to the consideration of the jury. The judge on the trial, discovered no inclination either way; but on all the evidence, left the sanity of the testator as a mere fact to the jury, who were the judges of it. I fully agree with the counsel for the defendants, that the case of Smith v. Irish, so often mentioned, has placed this matter upon the true ground, and decides it. If, indeed, the evidence had been received for purposes similar to those mentioned in the numerous cases cited on the part of the plaintiff manifest error would have intervened; the object, however, having been entirely different, the cases do not apply. We think there was no error in admitting this evidence.

In the next place it is said that the court erred in admitting the evidence of Samuel Thompson, T. B. Dallas and others, in relation to the credibility of John Ross, one of the defendant’s witnesses,, whose general character had been impeached by the plaintiff and of whose general character the witnesses had no knowledge. The plaintiff after John Ross had been examined in chief on the part of the defendants, called a number of witnesses to his general character in his neighbourhood, as to truth, who said it was bad. The defendants then to rebut this, and support his character, called witnesses who testified, in substance, that they had known him many years, some of them all his lifetime, but that they could only speak of his general character as to veracity, without being able to say what it was in his immediate neighbourhood; and some of these witnesses were then asked, whether they would, believe him on his oath, from what they knew of his general character? And of this the plaintiff complains. He contends, that as the witnesses only knew his general character, hut could say nothing of his character, in his immediate neighbourhood, they ought not to have been admitted to testify. I have not been able to discover any error in the admission of this evidence: indeed I thought the point here raised, had been at rest since the decision of Kimmel v. Kimmel, 3 Serg. & Rawle, 336. In that case the question was asked, “ What is the general reputation of Peter Kimmel, in the county, as a man of truth?” which was excepted to, and the court below sustained the objection, and overruled the testimony. The supreme court, on a-writ of error, reversed the judgment; and Justice Duncan in that case said, “ character and reputation are the same: the reputation which a man has in society is his character, and where it is in issue, particular facts cannot be inquired into, nor given in evidence, nor can mere opinion.” In the case cited from 11 Serg. & Rawle, 199, this case of Kimmel v. Kimmel is recognized. The question there was, whether he knew the general character of the witness1 This, said the court, was strictly proper, and add, what is said by people, in general, is the true point of inquiry; and every thing short of it is incorrect; so that we find, the witness is not strictly confined to the immediate neighbourhood of the person, but is allowed to say, what his character for truth is in the county, or what the people in general say as to his general character. In this last mentioned case it. is declared, that to the question, whether the witness would believe him on his oath? a direct answer would not be objectionable; provided the belief was founded on the witnesses’s knowledge of his general character, otherwise, it would not be to the purpose; though I will observe, that in practice, I have heard the single question, “would you believe him on oath?” put for thirty years- and more without objection. To come then to the case immedi-ately before us: Justice Rogers decided that in attacking the character of a witness, the proper mode was to ask the witness-whether he was acquainted with the general character of the witness for truth and veracity, and whether from that general-character, he would believe him on his oath? He further decided,that in supporting the character of the witness, the same mode should be pursued. The witness whose character was impeached, lived in St. Clair township, about four miles from Pittsburg, and is a man well known in Allegheny county. The witnesses who supported his character, live in Pittsburg; they had seen him often, transacted business with him, knew him well, and were acquainted with his character. With regard to the meaning of the terms, neighbours, neighbourhood, immediate neighbourhood, I would say, in reference to the present objection, that they were co-extensive with the range of John Ross’ frequent intercourse with his fellow citizens, which, from the evidence, includes the county of Aliegheny. On this part of the case I am authorized to state, that at the trial of the case, Judge Rogers was of opinion, although he did not so decide, that greater latitude is given in support, than in attacking character; and this.I think is abundantly supported by the authorities, and by the reason of the thing. So that if there was error, it was in favour of the plaintiff who excepts. But, in our opinion, there was no error; and anew trial cannot be -awarded.

I proceed to the examination of the 3d and 4th exceptions, which may be considered together. In regard to the third, 1 must, however, observe, that the counsel have changed the words and meaning of the judge, to make the error of which they complain. The exception is, that the jury "was told, if the deed of 14th February, 1823, was invalid at that time, it would not be made valid by any subsequent act. The court did not say so — the words of the Judge are, If William Chess was insane at the time of the execution and delivery of the deed, or if it was procured by imposition and fraud, the deed was absolutely void, and no acts or declarations of his, which have been given in evidence, would confirm it.” The meaning of the judge is evident, and cannot be misunderstood; he did not inform the jury that an invalid deed could not be made valid. The cases cited on this subject cleaidy establish the distinction between a void and an invalid or voidable deed, and that the former cannot-be confirmed, though the latter may. In Coke Litt. 295, b. a confirmation is said to be a conveyance, whereby a voidable estate is made good, or a lesser estate is enlarged; but when a deed is void, then there can be no confirmation. In 1 Wils. 320, it is decided, that articles and conveyances obtained by fraud and imposition, were not made good by the subsequent acts and declarations of the grantor. So also in 15 Johns. 573, and Duncan v. Findley, 4 Serg. & Rawle, 483, and many more cases might be cited, establishing the same doctrine. I think Lord Mansfield somewhere has said, there could be no confirmation of a thing absolutely void; but that the acts of the. grantor might operate as a new grant. Were there any such acts proved in this case? I have looked for these in the evidence, but looked in vain: they are not to be found in the evidence: (I speak here my own sentiments) on the contrary a host of witnesses, proved Mr. Chess, the father, to be a man of weak and confined intellect, at intervals clearly insane, and at all times incapable of transacting business, unless with the advice of his family. He did not for many years before his death, manage or direct the business of his farm, but left it to others. For years, as the plaintiff’s own witnesses proved, he entertained a groundless antipathy against his wife and his eldest daughter; and some time previous to the 14th February, 1823, he went to reside with the plaintiff, who had before been advanced more than a child’s share, and whose influence over him I can hardly doubt. In short, the circumstances, before and at the execution of the deed, were very suspicious, and after the execution the grantor returned with John, continued with him, and subject to his influence, until near his death; during all -which time, there is not any act or expression, not a whisper proved, indicating a confirmation of his deed. To me it does appear, that the condition of his intellect ivas. no better after, than before or at the date’of the deed; if, indeed, there was any change, it was for the Worse. When he spoke of the contents of the deed, he spoke- of it as containing one hundred acres and no more, although the deed contains one hundred and twenty-one acres; and we are told that the surplus of twenty-one acres is full of coal, and therefore very valuable. When and where then, I ask, did he confirm the deed'? But I repeat it, if there was actual fraud when the deed was executed, it could not be confirmed; for it théri comes directly within the principle settled in Duncan v. Findley, 4 Serg. & Rawle, 483, and since in Yard v. Adlum, 1 Rawle, 171. 1 cannot discover that the court took any facts, which were offered to prove a confirmation of the deed, from the consideration, of the jury, to say whether the grantor was sane and of perfect mind, and free from imposition or fraud, at the time the alleged confirmation was made or not. These exceptions are not sustained.

The 5th reason is, that the court erred in charging the jury, that recording the deed was no delivery, but only evidence of it, of which the jury were to judge. In the argument on this point, the counsel, with much apparent plausibility, contended, that by our recording act of 1715, deeds of bargain and sale have the same effect as a feoffment, that enrolling is like livery of seisen, and that a deed takes, effect from it. Without entering into a minute examination of the soundness of the doctrine contended for,, as that appears to me not necessary, I will venture my opinion, thus far, that although a feoffment, lease and release, fine, &c. are said to operate by transmutation of possession, and a bargain and sale by the act alluded to, has the same legal effect as as a feoffment or release, yet the time when the deed of bargain and sale takes effect,.is the time of actual delivery. In the evidence, I can see no proof of the delivery of the deed, or any tiling to show who placed it on record; indeed, it appears to me, there is not the colour of evidence that William Chess took the deed to the recording office; all that is proved as to this part of the cause, being, that two or three weeks before the 1st of April, the old man came to the river, and said, “he was going to get the deed recorded;” and thus far he is traced, and no further. It was not then recorded, and not until about three weeks after, by whom, no one does or can say. I have examined the testimony bearing on this part of the cause, with some attention, and it appears to me, that if the deed was not delivered on the 14th February, 1823, there is no evidence, that it was delivered in fact at any other time. The mere reading of it is not a delivery, it is evidence only of a delivery. Delivery is requisite to the proper and legal execution of a deed, and it may be, as stated in Shepp. Touch. 57-58, and 12 Johns. 421, either actual, by doing something, and saying nothing, or else verbal, by saying something and doing nothing; or it may be by both; but by one or both of them, it must be made: for otherwise, though it be ever so well sealed and written, yet it is of no force. The delivery may be to the party, or to any one for the party, if duly authorized; or to a stranger, for the use of the party, without authority. I cannot see, in this case, any evidence of a delivery by William Chess. If then the deed was not delivered on the 14th February, 1823; if on that day the grantor was insane; it was incumbent on the plaintiff to show when it was delivered. He has not done so; and in the absence of proof to the contrary,-the inevitable presumption is, it was delivered in fact on the day it bears date: but on that day the jury have pronounced him to have been insane, and it is therefore almost unnecessary to say, this deed could not have been legally executed. The recording of it, therefore, was no delivery; at best, it was merely evidence of delivery, of which the jury were to judge. I am accordingly of opinion, that in respect to this part of the cause, the judge charged correctly, and that, for the reason here assigned, we ought not to grant a new trial.

One exception more remains to be adverted to. It is, that the court erred in sustaining the challenge of the defendants, to a juror, on the sole ground that he was a witness in the cause. In the case of Harper Irvine v. Kean, 11 Serg. & Rawle, 280, the cause of challenge was “ that .the juror had been examined before arbitrators, as a witness for the defendant;” and it is there said, that a juror is a competent witness, and that therefore it cannot be a rule, thatone cannot be a juror, because he has given testimony in the same cause before another tribunal: but it is also there said, that it seems if the testimony be of such a nature, as to show that he had formed an opinion in favour of one of the parties, it ought to exclude him from the jury. • And this is right. In this case the juror wished to be excused, and stated he was a witness. It did not then appear what he would prove; but it was known he was a witness for the plaintiff: and if, as it has been said, he was to be called to impeach the character of John Ross, who was an important witness for the defendants, and whom it was said the juror would not believe on oath, he ought to have been excluded from the jury. In delivering the opinion of this court, in a case at the last term for the middle district at Sunbury, I-said, that it did not escape the discernment of our legislature, that a principle requisite to secure a due administration of justice, and fair and impartial trials, was to have jurors who were impartial and entirely free from all kind of bias, or the suspicion thereof; that like Caesar's wife, they ought not only, to be pure, but unsuspected. Our jury law manifestly provides for an impartial jury. What was done in this particular, in the case before us? Why a doubtful man was set aside, in a great measure .upon his own request, and one not liable to any objection, substituted. ■ Surely this, was not .error. In fine, we are of opinion, that a new trial ought not to be granted, for any of the reasons assigned, but that the judgment of the circuit court should be affirmed.

Top, Justice, dissented.


author: Smith, J.

text:
    JAMES R. M‘GREW against MATTHEW M'LANAHAN, and SIMON DRUM.
    When land is sold upon a judgment, the sheriff must appropriate the money arising from the sale to existing liens, according to their priority, and convey to the purchaser a title free from incumbrances. '
    When a judgment is obtained upon one of several bonds which were secured by a mortgage, and an execution issued thereon, upon which the mortgaged premises are levied, and afterwards sold upon a venditioni ex-ponas, before the mortgage is due, the purchaser takes the land discharged of the lien of the mortgage.
    This was an .appeal from the decision of Huston, J. at a circuit court, held for Westmoreland county.

      Mathew MLanahan, one of the defendants, being the owner of a tract of land, on the 15th of April, 1815,, executed a mortgage thereon, to secure the payment of eight bonds to William Campbell, bearing even date with the said mortgage, and each conditioned for the payment of three hundred and fifty dollars, on the 15th April, in each .year thereafter, until the whole should be paid. The mortgage was recorded on the 24th January, 1817. On the 15th April, 1817, two of the mortgage bonds being due, William Campbell brought separate suits thereon against Matthew M‘Lanahan, in the common pleas of Westmoreland county, to August ■term, 1817, and obtained judgments; writs of fieri facias, were issued to the next term, which were levied upon the mortgaged premises; an inquisition thereon held, and the same condemned: whereupon to November term, 1818, a venditioni exponas issued, and the land was sold to Simon Drum, the other defendant, for six hundred and fifty dollars, who on the 17th February, 1819,. received the sheriff’s deed therefor.
    After the mortgage became due, a scire facias was issued thereon to August term, 1824, upon which judgment was obtained on the 21st October, 1824, for fwo thousand and fifty-nine dollars and thirty-nine cents; a levari facias was issued to February term, 1825, and the land was sold to James B. M‘ Grew, the plaintiff, who was also the assignee of the mortgage, for fifteen hundred dollars, who received the sheriff’s deed for the same on the 23d February, 1825.
    It also appeared that the six hundred and fifty dollars, paid by Simon Drum, was more than sufficient to pay the judgments of William Campbell, upon which it was sold, and a small balance thereof was paid to Matthew M‘Ldnahan, the mortgagor, and Simon Drum, the purchaser, under the judgments obtained on the mortgage bonds.
    Under the direction of the court, the jury found a verdict for the •defendants. A motion was made for a new trial:
    1st. Because the court erred in instructing the jury that the sale made to Simon Drum, upon the judgments, discharged the lien of the mortgage.
    2d. Because the court directed the jury that they ought to find for the defendants, whereas their verdict ought to have been for the plaintiff
    Which motion was overruled, and the plaintiff appealed.
    In this court the cause was argued by A. C. Foster and Coulter for appellant.
    The cases of JVichols v. Postlethwaite, 2 Yeates’ Rep. 131, and Gurney’s Executors v. Alexander, 14 Serg. ¿f Rawle, 257, establish the principle, that not only judgments against the defendant whose land is sold, but also against his vendor, and even legacies must be paid by the sheriff out of the proceeds of the sale. But to this rule it is apprehended there are exceptions. If a junior judgment creditor sells lands sufficient to pay all prior judgments, there can be no good objection from any quarter:]but if those lands are sold for a sum which is insufficient to satisfy the prior judgments; the court, on the application of those prior judgment creditors, would refuse to confirm the'sale, or to permit the sheriff to acknowledge the deed. It would not be sanctioned, that the security of a judgment creditor should be swept away by one who could have no beneficial, interest in the sale, or in the fund produced by it.
    Two fundamental principles may be laid down, which will form a rule to decide all possible cases that can arise under a sheriff’s sale. The first, which has been long established, is, that any right, however small, may be sold in Pennsylvania, for the payment of debts.
    The second is, that every rule of law and equity, applicable to a sale made by an individual, is also applicable to a sale made by a sheriff. Thus if one against whom there are several judgments, sells his land for more than the amount of such judgments, the purchaser will be justified in appropriating so much of the purchase money to their payment; and it will be payment of so much to the vendor. If he does not thus sell, the law will interpose and sell for him, and direct the sheriff to do that which he himself might have done. If the purchaser would pay over the purchase money to the vendor, the lien of the judgments would remain; nor, if the purchaser at sheriff’s sale neglects to see the money appropriated to the payment of prior judgments, will the sale, it is apprehended, discharge prior liens.
    The case of a mortgage stands on stronger grounds, as respects the mortgaged property, than the rights even of a prior judgment creditor. It is considered as established law, that as between the mortgagor and mortgagee, the legal estate is in the latter, and the equity of redemption in the former. The right of the mortgagee to sustain an ejectment upon the mortgage deed, and recover the possession of the land, that the executing of a mortgage by one joint tenant, severs the joint tenancy; and other cases prove, that the common law construction and effect of a mortgage is recognized in Pennsylvania, and is unaffected by the remedy afforded by our statute.
    What more can be levied on a fi. fa. than the equity of redemption? It is all the right, title, interest and claim, of the defendant. Could he sell more by private sale, or would any thing more pass from him by any deed he could make? And, it may be asked with great confidence, can the sheriff sell any greater estate than the defendant had?
    This question arose in the case of Patterson for use v. Sample, 4 Yeates 308. There the mortgage was recorded 13th March, 1801, more than six months from its date, but before the judgment, which was entered' 14th November, 1801. The mortgaged land was sold under a judgment for eight thousand dollars. An application having been made to the supreme court on appeal from the circuit court, that court expressly declared, “ that the mortgagee had a plain simple remedy, by proceeding in the usual way on the mortgage.” This decision cannot be misunderstood; and if it is authority, is conclusive of this cause, unless the circumstance of the judgment upon which the land was sold, being obtained upon a bond which was secured by the mortgage, should alter the case: and it is not easily discoverable how that can be.
    In MCall v. Lenox, 9 Serg. 8f Rawle, 308, the present C. J. expressly says, if the mortgagee “proceeds as a judgment creditor on the bond, he may instantly have execution of the mortgaged premises, to the extent of the equity of redemption.” And Duncan, J. was of opinion, “that when there was a judgment for one entire debt, secured by a mortgage, and the mortgaged premises sold, the purchaser acquires all the title of the mortgagor:” yet he excepts from this general doctrine, the case of several bonds, given to the same person, secured by the same mortgage. The plaintiff is therefore not without authority on his side. In the case of Lenox v.
      M Call, judge Duncan says that the case in 11 Johns. Rep. 462, Jacksonv. Hall, where the land sold for seventy dollars, and had been mortgaged for seven hundred dollars, was determined upon principles of strict law, arising from the disparity of price and real value. But how dangerous it would be to render the law thus uncertain! If any weight ought to be attached to such a circumstance, it would apply with its fullest force to this case, where the land was sold for less than one fourth its value. The authority of the case in 11 Johns, is not in any degree shaken by the case in 2 Johns. Chan. Rep. Tyer and Aiken v. Anon; it is, indeed, confirmed. It is true the chancellor intimates certain supposed inconveniences that may arise from the sale of an equity of redemption; yet in that case, although the land was levied on, and not the equity of redemption by express terms, he considers it nevertheless as only the equity of redemption, and decrees accordingly: and the suggestion that he might hereafter issue an injunction to prevent the sale, of the equity of redemption, (from its supposed injury) would apply as well to a case where, in express language, the equity of redemption was levied on, as where it followed from natural and legal construction.
    The acts of Assembly in relation to sales under judgments, only give such title to the purchaser as the defendant had at the time the judgment was obtained; and the circumstance of its having been obtained upon a mortgage bond, can not alter the law.' In the argument of the case of Bantleon v. Smith, 2 Bin. Rep. 146, Mr. Hopkinson and Mr. Rawle say, “ it is analágous to the case of a bond and mortgage, in which an execution and sale, under the bond, has never been supposed to extinguish the plaintiff’s lien.”

      J. B. Alexander for appellees.
   The opinion of the court was delivered by

Smith, J.

The question which is presented for the decision of this court is; whether the purchaser of the land, sold under the levari facias, issued on the judgment obtained on the scire facias on thé mortgage, for several of the instalments due on the land, can recover in an ejectment, the possession of the land from the mortgagor and the purchaser of the same land, sold to him by the sheriff, under an execution issued on a judgment, obtained in the action brought to recover the amount of one of the bonds, the payment of which was secured by the same mortgage, when the said judgment had been obtained, execution issued, and the land sold, before action was brought, or judgment rendered, on the mortgage for said subsequent instalments.

At the circuit court held last August by justice Huston, for the county of Westmoreland, he instructed the jury, that the sale of the land, on the judgment in the suit on the bond, extinguished the right of. the plaintiff to sell the same land again, on the mortgage:, that Simon Drum, the purchaser at the first sheriiPs sale, bought the estate, and held it freed and discharged from this mortgage, and that the last sale to the- plaintiff was void, and vested no interest in him. The jury found, accordingly, for the defendants, and from this decision the plaintiff appealed to this court.

In the case of judgments, it certainly has been an ancient practice, and is now a settled rule, for the sheriff, when land has been sold by him on a judgment, to appropriate the money proceeding from the sale, to existing liens, according to their priority, and to convey to the purchaser, a title free from incumbrances. See 1 Bin. 97. 3 Bin. 358. 1 Serg. & Rawle, 320. 7 Serg. & Rawle, 290. 14 Sergt. & Rawle, 257. In the case of Nicholls v. Postlethwaite, 2 Dall. 131, decided at a court of Nisi Prius, at Carlisle, the court even directed legacies, charged on the land of the defendants, by his 'devisor, to be paid. And the case of Gurney's Executor v. Alexander, 14 Sergt. & Rawle, 257, clearly goes to establish the principle, that not. only judgments against the defendant, but judgments against his vendor, which were a lien on the land, should be paid out of the money arising from the sale of the defendant’s land.

The case of M‘Call v. Lenox, 9 Serg. & Rawle, goes far to decide the present question. In that case, chief justice Tilghnan remar Iced upon the practice in this state, to sell land for its full value,without regard to liens, and apply the proceeds of the sheriffs sale, to the discharge of liens according to their priority. And in a case of Glass v. Gilmore, decided by this court in Lancaster, at May term, 1829, and not yet reported, justice Rogers, in delivering the judgment of the court, said, “ as respects sales, made by the sheriff, it has been already decided, that the lien of judgments, and even legacies, charged on lands are divested; that the judgment creditor and legatee, must look to the sheriff for their money, as the purchaser is not bound to see to the application of the purchase-money.”

But it is contended, that the rights of a mortgagee, stand on higher grounds than those of a prior judgment creditor. I confess-I cannot see why they should; nor have they, in adjudged cases on this subject, been so considered. Although mortgages in form arc conveyances of lands, yet in substance, they are only securities for the payment of money; and the debt being once paid, or extinguished, the mortgage is considered as at an end. Between the mortgage and the bond, there is, as judge Duncan expresses it, an inseparable union; the bond is ¡the principal, the mortgage an incident to it, incapable of existing without the debt, of which the bond is the original security. How then, when the land is sold for the very debt secured by the bond, can the rights of mortgagees be considered as standing on higher grounds, than the rights of prior judgment creditors? The bond and mortgage are securities for one and the same debt, to recover which, the mortgagee has three remedies; he may proceed by ejectment, and recover the premises; by scire facias on the mortgage, or on the bond, by an action of debt; if he proceed by scire facias, or by action of debt, on the bond, he may recover the debt by a sale of the land. The mortgagee has his election to proceed in either way, and having seen proper to proceed on the bonds, or one of them, and have the land sold, the very substance-itself it would be wholly incongruous and unjust, to permit him to proceed to a second sale on a scire facias, of the same substance. Such double proceedings are incompatible, and repugnant to the spirit and policy of our law. The land cannot be twice sold. If by this proceeding on one of the bonds, the mortgagee has been injured, or a loss has been sustained, it is his own fault, by not proceeding directly on the mortgage; to prevent injury to others, the mortgagee must, so deal with his security, as not to work injustice. These principles have been established by former decisions, particularly that in the. case of M'Call v. Lenox, 9 Serg. & Rawle, 302. But the question was put at rest by this court, at the last session at Sunbury, in June, in the case of Millard and Adams v. Norris. In that case, the land had been sold by the sheriff, without any reservation or mention of incumbrances. The question was, whether a purchaser at sheriff’s sale, under a judgment, held the land freed and discharged of the lien of a mortgage, prior to the judgment; and it was decided that in this state, the usage had been, if there was not an express reservation, that the title and lien of a prior mortgage were divested, and extinguished by a sheriff’s sale of the land on a younger judgment. The opinion delivered in that case, by Justice Tod, entered into a full examination of all the cases. We are, accordingly, of opinion, that the decision of the circuit court was right, and that the judgment be affirmed.

Judgment affirmed.