thing necessary so that innocent parties should not suffer. If they neglected any duty, they and not innocent parties must bear the loss. If it be said they did not know of the existence of this note, the answer is the contract and receipt thereon showed its existence. If they did not know of the contract, that fact can make no difference, as their judgment became a lien, not on what lands or interest in realty they thought or supposed Mr. Thompson had at the time of its entry, but only on what he in fact had. In other words, their lien was subject to the rights of Mr. Dougherty under his contract. He did not owe them the duty to watch the record, and when their judgment was entered to inform them of the existence of the note and the possibility of its being negotiated. Had they inquired of him and he had not told them the truth, the case might be different. It is nowhere shown that Mr. Dougherty did not act in good faith and honestly throughout the transaction. Hence he should not, nor should his creditors who claim under him, be made to suffer for no fault or laches of his or theirs.

"It follows from this that the learned auditor erred in distributing $5,000 and interest thereon to the judgment before mentioned and now held for the use of Samuel L. Riddle, and exceptions 8, 9 and 13, filed on behalf of John Berg & Co., are sustained.

Charles McCandless and W. H. H. Riddle, for appellant. "It is a doctrine often reiterated that every estate in land is bound by the lien of a judgment, whether the owner be seized or disseized." 1 Trick. Liens, $187, and the authorities there cited; Mitchell v. Hamilton, 8 Penn. St. 486; In re Vandevender, 2 Br. 303; Sellers v. Burk, 47 Penn. St.; Davis v. Ehrman, 20 id. 256; Ex parte Peneveyce, 6 W. & S. 446; Hoffman Estate, 2 Pears. 317; Shaupe v. Shaupe, 12 Serg. & R.; Thomas v. Simpson, 3 Penn. St. 60; Beard v. Dietz, 1 W. 309; Bank v. Stauffer, 10 Penn. St. 398. A judgment against a vendor by articles of agreement, who retains the legal title; is a lien thereon to the extent of the unpaid purchase-money, the vendor holds the legal title as security for the payment of the purchase-money; and a judgment recovered against him after the rise of the equitable title of the vendee will attach to the land to the extent of the money unpaid on the contract of the vendor. 1 Trick. Liens, § 189, and the authorities there cited; McMillen v. Wenner, 10 S. & R. 18; Fasnold v. Reed, 16 id. 266; Cutlin v. Robinson, 2 Watts, 373; Stewart v. Coder, 11 Penn. St. 90; Taylor v. Preston, 79 id. 436; Appeal of Geddes, 84 id. 482. "At law a lien is usually deemed to be a right to possess and retain a thing until some charge upon it is paid or removed." The only defense of a terre-tenant to a judgment against his land is subsequent satisfaction, or the plea of "nul tiel record," and that will fail if a judgment in form is produced. Cardesa v. Humes, 5 S. & R. 65; Lewis v. Smith, 2 id. 142; Panneuter v. Gillespie, 9 Barr, 86. Sugden on Vendors, volume 2, page 385, says: "But taking a bond or note for purchase-money will not affect the vendor's lien, and though this has been decided otherwise, it is now a settled point." And in support of this doctrine we name the following authorities: Hearle v. Botelers, Cary, 25; Tardiff v. Scrugan, 1 Bro. C. C. 422; Harrison v. Southcote, 2 Ves. 389; Ex parte Latey, 2 Mon. & Ay. 609. Also, see 16

Ves. 338-343; Gibbons v. Baddale, 2 Eq. Cas. Abr. 682, note b; Ex parte Peakie, 1 Mad. 346; 4 Kent (11th ed.), 153; Evans v. Goodlet, 1 Blackf. 246; Cox v. Fenwick, 3 Bibb, 183, 184, 185; Taylor v. Hunter, 5 Humph. 569; Baum v. Grigsby, 21 Cal. 172; Clark v. Hunt, 3 J. J. Marsh. 503; Ross v. White, 6 Yerg. 50; Pinchain v. Collard, 13 Tex. 333; Truebody v. Jackson, 2 Cal. 269; Manly v. Sleson, 21 Vt. 271; Van Doren v. Todd, 2 Green Ch. (N. J.) 397; Toby v. McAllister, 9 Wis. 463; Hoggatt v. Wade, 10 Sm. & M. 143; Garson v. Green, 1 Johns. Ch. 308-9; Fish v. Howland, 1 Paige, 20; Eskridge v. McLure, 2 Yerg. 184. That the point is now settled is shown by the following authorities: Blackburn v. Gregson, 1 Cox, 90, and 1 Bro. C. C. 420; Tardiff v. Scrugan, id. 423; 15 Ves. 336; Hughes v. Kearney, 1 Scho. & Lef. 132; Lynn v. Chaters, 2 Ke. 521; Leed v. Carruthers, 2 Yo. & Col. C. C. 40; 4 Kent Com. (11th ed.) 153; Grant v. Mills, 2 Ves. & Beames, 306; 1 Scho. & Lef. 132, 136; Gilman v. Brown, 1 Mason, 191, 218, 219; Fish v. Howland, 1 Paige, 20. "The acceptance of a collateral security is not a conclusive waiver of vendor's lien." 2 Story Eq. Jur., § 1226. "It is not important that the note or bill has been negotiated." 2 Sugd. Vend. 386; Ex parte Loaring, 2 Rose, 79; Mackreth v. Symmons, 15 Ves. 329.

T. C. Campbell, for appellees. After the agreement of December, 1876, was made between Thompson and Dougherty, Thompson was no longer the owner of the land. He held the legal title only, and that as trustee for Dougherty, subject to the terms of his contract with Dougherty. Patterson's Estate, 1 Casey, 73. If the note was taken as conditional payment, and Thompson, without the aid or interference or knowledge of Dougherty, negotiated it before maturity, for value, and without notice of any defense to the indorsee, Dougherty was compelled to pay it to that indorsee, and having done so the lien of the judgment was ipso facto released from his land. Cumber v. Wane, 1 Sm. Lead. Cas. 457; Byles Bills, 380, 381; Bayard v. Smith, 1 W. & S. 94; Hays v. McClurg, 4 Watts, 452; O'Kee v. Spencer, 2 Whart. 253; Brown v. Scott, 1 Sm. 362; Story Prom. Notes, S$ 104, 404, 405; Hutchins v. Olcutt, 24 Am. Dec. 634; s. c., 4 Vt. 549. Neither a surrender of title papers, a verbal agreement to surrender, an intention to cancel, or the destruction of a deed, will revest the title in the vendor or grantor. 1 Purd. Dig. 831, § 2; Cravener v. Bowser, 4 Barr, 259; Bowser v. Cravener, 56 Penn. St. 132; Rifener v. Bowman, 53 id. 313; Murphy v. Hubert, 4 Harr. 50. And particularly as to a feme covert. 2 Purd. Dig. 1150, § 13; Brown v. Bank, 3 Barr, 187.

PER CURIAM. We affirm the decree in this case on the opinion of the learned judge of the court below.

Decree affirmed, and appeal dismissed at the costs of the appellant.

Penn.]

STAYTON V. RIDDLE.

STAYTON v. RIDDLE.

37

USURY-COLLUSION

November 1, 1886.

· EVIDENCE OF

EQUITY SPECIFIC PERFORMANCE. Since the approval of the act of May 28, 1858, it is not unlawful for a debtor to pay or a creditor to receive more than six per cent interest; when done in good faith and in the usual course of business, other creditors of the debtor have no reason to complain; nor have they any right to interfere in any case, except where, under the guise of usury, there has been a collusive scheme between the debtor and his creditor to cheat and defraud other creditors of the former, and the mere fact that the debtor has paid or agreed to pay more than six per cent interest is no evidence of collusion. Those who allege that usury is a fraud upon them must do more than show the payment of interest in excess of the legal rate. That is a matter of which the debtor alone can complain.

Contracts relating to personal chattels are not enforceable specifically in equity A, who owned real estate mortgaged it, the mortgage being the first lien; later, judgments were entered against A.; later, the mortgaged property was, by virtue of an execution upon one of the judgments, levied upon by the sheriff, and advertised for sale; whereupon B. agreed with A. to purchase the property at the sheriff's sale, A. to defend against the mortgage to the extent of certain usury; he did not so defend, but went into court and confessed judgment for the full amount claimed by the mortgagee. Held, B. could not for A. in his name and without his consent make the defense of usury. Held, also, specific performance of the contract between A. and B, could not be enforced on the equity side of the court.

Error to the court of common pleas of Butler county.

that

Graham owned property, upon which he gave a mortgage to Stayton, which was assigned to Martin, and by him to Bryan. The mortgage was the first lien upon the property; after its date judgments were entered up against Graham, upon one of which the mortgaged property was sold by the sheriff, subject to the mortgage, and Graham, anxious to save a part of the property, went to see Riddle for the purpose of arranging it, if possible. Graham agreed to defend the mortgage as to usury, provided for in it, if Riddle would buy in the property at sheriff's sale. Riddle did buy. After the sheriff's sale a scire facias was issued to collect the balance due on the mortgage, whereupon Riddle and those claiming under him put in the defense of usury. For part of the mortgage debt not alleged to be usurious judgment was taken; later, Graham appeared and confessed judgment in favor of the plaintiff for the amount of usury claimed by Riddle to be included in the mortgage. Before the trial of the case a decree had been entered by the court sitting in equity. Riddle filed a bill in equity against Graham and Stayton for use of Martin, now for use of Bryan, praying that the judgment confessed by Graham for $1,676.07 be set aside and vacated; that Riddle be permitted to defend against the scire facias sur. mortgage to the amount of the usury and illegal interest therein; that Stayton for use of Martin, now for use of Bryan, plaintiff in scire facias, be restrained from having any other or greater judgment therein, and for such other and further relief in the premises as to the court might seem proper. To this bill Graham and Bryan made answer, denying that Graham had agreed to defend the mortgage for Riddle's benefit as to usury. The issue having been joined, a master was appointed, before whom the testimony was taken. The master recommended a decree dismissing the bill, to which Riddle filed exceptions.

The court upon argument confirmed the master's report, and dismissed the bill without prejudice to the complainant's rights at law. Upon these facts the case went to the jury. The verdict was for the defend

ants.

C. A. Sullivan and T. C. Campbell, for plaintiffs in error. Under the usury act of 1858, two classes of persons have been held in Pennsylvania to be incapable of setting up the defense of usury: First. Creditors; Second. Purchasers of the property incumbered by the usurious lien. As: Lien creditors upon distribution before an auditor. Appeal Titusville Bank, 5 Norr. 530. Second mortgage as to usury contained in first mortgage. Wheelock v. Wood, 12 id. 298; Lennig's Appeal, id. 301. Purchaser at private sale who agrees to pay mortgage. Verner v. Carson, 16 Smith, 440. Purchaser at sale of assignee in bankruptcy who buys subject to mortgage. Bank v. Roseberry, 31 Smith, 312. Since the act of 1858 we contend that this court has always held that no one except the debtor or other persons connected with the original loan can take advantage of this usurious contract. "No longer since the act of 1858-can a stranger to the transaction, by a qui tam action, make a forfeiture of the whole debt. The statute professes to deal only with the parties to the proceedings. The debtor may elect whether he will withhold the excess, or recover it back within the time limited. Failing to act in time, he has no remedy. No public informer can interfere either before or after the payment. Bank v. Roseberry, 31 Smith, 312; Bly v. National Bank of Titusville, 29 id. 457; Macungie Bank v. Hottenstein, 8 Norr. 339. Under statutes which do not declare usurious contracts absolutely void, usury has uniformly been held in the United States to be a strictly personal defense, to be only taken advantage of by the parties to the nsurious agreement and their privies. Freeman's note to Davis v. Garr, 55 Am. Dec. 398; Tyler Usury, 403. One who has for a full consideration on a conveyance of land assumed the payment of a usurious mortgage cannot take advantage of the usury. 2 Jones Mort., & 1494; 3 Pars. Cont. 122; Cramer v. Lepper, 26 Ohio St. 59; Burlington Mut. Loan Ass. v. Heider, 55 Iowa, 424. A purchaser of an equity of redemption cannot set up or avail himself of usury. v. Kemp, 13 Mass. 515; Conover v. Hobart, 24 N. J. Eq. 120; Fee v. Stiger, 30 id. 610; Reed v. Eastman, 50 Vt. 67; McGuire v. Van Pelt, 55 Ala. 344. A chancellor will not enforce an executory agree'ment to the prejudice of an innocent third party without notice. Tower v. Barrington, Brightly, 253. Because the equity of the defendants is not clear. Weise's Appeal, 22 Smith, 351. Specific performance will not be decreed unless the agreement be certain, just and fair in all its parts. Backus' Appeal, 58 Penn. St. 186. To entitle a party to a decree for specific performance, the contract must be mutual; both parties must have a right to compel specific performance. Bodine v. Glading, 9 Harr. 50; Meason v. Kaine, 13 Smith, 335.

Green

John M. Thompson and S. H. Piersol, for defendants in error. "The terre-tenant who purchased the mortgaged premises at sheriff's sale and was allowed to defend against the claim of the association on

the mortgage is entitled to take defense as to the consideration of the mortgage, and to show that it was unlawful to the amount of the premiums, and to that extent not a valid lien upon the land." Link v. Germantown Building Association, 8 Norr. 15. In Green v. Tyler, 3 Wr. 361, and which has not been overruled, but distinguished from other cases, and perhaps modified, the second mortgagee did not take defense against the usury in the first mortgage until after judgment, and it was necessary for him to allege the usury as a fraud. In the present case Riddle et al. took defense, by leave of court, to the sci. fa. on the mortgage. Stayton was but a trustee for Graham. Stevenson's Appeal, 18 P. F. S. 212.

STERRETT, J. Assuming the fact, impliedly found by the verdict, that, as between the parties to the mortgage, the debt secured thereby was tainted with usury to the extent of $1,050, it necessarily follows that the mortgagor had a right, under the provisions of the act of May 28, 1858, to retain and deduct that amount from the mortgage debt; but the right to do so was strictly personal, and could not be exercised by the terre-tenants of the mortgaged premises. Since the passage of the act above referred to, it is not unlawful for a debtor to pay or a creditor to receive more than six per cent interest. When done in good faith and in the usual course of business other creditors of the debtor have no reason to complain. Nor have they any right to interfere in any case except where, under the guise of usury, there has been a collusive scheme between the debtor and his creditor to cheat and defraud other creditors of the former; and the mere fact that the debtor has paid or agreed to pay more than six per cent interest is no evidence of such collusion. Those who allege that usury is a fraud upon them must do more than show the payment of interest in excess of the legal rate. That is a matter of which the debtor alone can complain. Second National Bank of Titusville's Appeal, 85 Penn. St. 528; Wheelock v. Wood, 93 id. 293; Lening's Appeal, id. 301.

It is contended, however, that when Riddle, one of the terre-tenants, purchased the property at sheriff's sale subject to the mortgage, Dr. Graham, the mortgagor, for a good and valuable consideration, agreed to defend against the mortgage to the extent of the usurious excess, and notwithstanding he subsequently refused to do so, the terre-tenants, as quasi assignees of the right given by the statute to the debtor himself, might for him and in his name make the defense. This position is more plausible than sound. To permit the terre-tenants to thus interpose the defense of usury, without the consent and against the will of the debtor, would be tantamount to decreeing specific performance of his agreement to defend against the usury.

The substance of Dr. Graham's agreement with Riddle was, to assert the personal right given him by the statute, and thus reduce pro tanto the incumbrance, subject to which the defendants in error took the mortgaged premises. He not only refused to do so, but he subsequently went into court and confessed judgment for the full amount claimed by the mortgagee. Would a chancellor enforce specific execution of such a contract? If he would it may be conceded that our courts of common pleas, invested as they are with equity powers, would permit a defense,