his assignee, Jonathan Boynton, no lien upon the estate of said G. R. Kinports, in said lands, as against a judgment entered against said G. R. Kinports, for a debt existing prior to May 29, 1875. Refused. (Seventh assignment of error.) (5) That the judgment of Porter Kinports against G. R. Kinports having been entered in the Common Pleas of Clearfield County, on the 11th day of August, 1876, became a lien upon the estate, right, title, and interest of G. R. Kinports in the lands aforesaid. Answer. "For answer we refer to our general charge." (Eighth assignment of error.) The Court instructed the jury to find a verdict for the defendant. (Tenth assignment of error.) Verdict and judgment for defendant. Whereupon the plaintiff took this writ, assigning for error, the rejection of his offers of evidence, the answer to his points, and the portions of the charge as above; also the binding instruction of the Court to the jury to find a verdict for the defendant. Frank Fielding and John H. Orvis (J. F. Snyder with them), for plaintiff in error. The title of a vendor under articles of agreement is such, that, on his death it will descend to his heirs; it may be conveyed by deed or mortgage, and is bound by the lien of a judgment. McMullen v. Wenner, 16 S. & R. 17. Catlin v. Robinson, 2 Watts, 373. Wilson v. Stote, 10 Id. 434. Stewart v. Coder, 11 Pa. St. 90. Vincent v. Huff, 8 S. & R. 380, 388. The paper executed by G. R. Kinports to John W. Williams, was a pledge of the interest of Kinports in the land, as a security or indemnity. It was a mortgage and nothing else. Meyer's Appeal, 42 Pa. St. 518. Rhines v. Baird, 41 Id. 256. McClurkon v. Thompson, 69 Id. 305. Filon v. Knowles, 2 WEEKLY NOTES, 226. Ordenbaugh v. Bradford, 67 Pa. St. 96. This mortgage was unrecorded, and an unrecorded mortgage is good only against a subsequent lien creditor who had notice of the unrecorded mortgage prior to the time his debt was contracted. Lohr's Appeal, 90 Pa. St. 507. Appeal of Philipsburg Savings Bank, 10 WEEKLY Friederick v. Corcoran, 100 Pa. St. 416; 10 WEEKLY McLaughlin v. Ihmsen, 85 Pa. St. 364. It was therefore a material fact that the debt for which the judgment of Porter Kinports was given existed before the date of the mortgage or assignment to Williams, and the Court should have received the testimony offered by the plaintiff. McLaughlin v. Ihmsen, 4 Norris, 364. Joseph B. McEnally (Daniel W. McCurdy with him), for defendant in error. The purchase-money interest of G. R. Kinports in the land he had sold to Tozier by articles of agreement, was not real estate. Leiper's Appeal, 11 Casey, 420. Leigh and Dalzell on Equit. Conversion, 19. It was not therefore subject to a mortgage in such a sense and to such an extent as to come within the meaning of the mortgage of lands, tenements, and hereditaments mentioned in the Act of March 28, 1820. The assignment by Kinports to Williams was the conveyance of a mere purchase-money interest, and being prior in time was superior in right to the judgment of Porter Kinports. There is no Act requiring it to be recorded; and G. R. Kinports having parted with all his interests in the real estate, there is nothing upon which the said judgment can hold a lien. Rogers v. Gibson, 4 Yeates, 111. May 7, 1888. THE COURT. This proceeding in the Court below was a scire facias to revive and continue the lien of judgment No. 485, September Term, 1876, in which Porter Kinports was plaintiff and Gideon R. Kinports, defendant. This judgment was entered of record August 11, 1876. On the 17th of November, 1885, a judgment for want of an affidavit of defence was entered against the said defendant and Jonathan Boynton as terre-tenant, in the scire facias. Subsequently an application was made to the Court below by Boynton to strike off the judgment as to him upon the ground that he was not a terre-tenant, and that the judgment had never been a lien upon the particular real estate in controversy. We need not refer to these proceedings in detail; they are not very clearly stated, but appear to have resulted in an issue to try this question, and a verdict in favor of the terre-tenant in conformity to a binding instruction of the Court. The question we have to determine is whether Gideon R. Kinports had such an interest in this particular real estate at the time the original judgment was entered as was bound thereby, and if so, whether the same was bound by the judgment on the scire facias as against Jonathan Boynton, as terre-tenant. The real estate which the plaintiff claimed was bound by the lien of his judgment, consisted of a tract of land of about two hundred and ment, but before the execution of a deed, binds the legal estate of the vendor; and on a sale under such judgment the sheriff's vendee stands precisely in the situation of the original vendor, and is entitled to the unpaid purchase-money, payment of which may be enforced by ejectment against the terre-tenant. (McMullen v. Wenner, 16 S. & R. 18; Fasholt v. Reed, Id. 266; Catlin v. Robinson, 2 Watts, 373; Wilson v. Stoxe, 10 Id. 437; Stewart v. Coder, 11 Pa. 90.) The right which Gideon R. Kinports had in the real estate after the assignment to Williams was the right to a reconveyance of the property after the payment of the debt which the assignment was intended to secure. It appears that the debt has not been paid, and the learned Judge below was of the opinion, that because it has not been paid, G. R. Kinports had a mere possibility which has never happened, and therefore he had no interest when the judgment was entered against him. But he had a right to pay the money and thus redeem the pledge, and when so redeemed to a reconveyance or return of the property pledged. His judgment creditor would have the right to sell the property subject to the pledge, and the purchaser at such sale would be entitled to stand sixty-five acres. It is undisputed that Gideon of land, after the execution of an article of agreeR. Kinports was the owner of this land in 1874, and that on October 8th of that year he entered into a written contract with Thomas Tozier by which he agreed to sell the said tract of land to the said Tozier for the consideration of $22,500 payable by instalments; that of these instalments, $6000 only was paid; that on May 29, 1875, Gideon R. Kinports, by a writing duly executed, assigned the purchase-money due him from Tozier, as well as his legal title to the said real estate, to John W. Williams, and that the said Williams on the 14th of October, 1876, assigned the same to Jonathan Boynton. Each of these assignments upon its face shows that it was as collateral security merely, and that the sum intended to be secured was several thousand dollars less than the purchase-money remaining unpaid. Neither assignment was recorded. We may further state as a part of the history of the transaction, that on March 9, 1875, G. R. Kinports brought an action of ejectment against Thomas Tozier, upon the legal title, to enforce the payment of the balance of the purchase-money, to which action the name of Jonathan Boynton was subsequently added as a plaintiff. This action was so proceeded with that a verdict was rendered for the plaintiff to be released upon the payment of $15,510. A judg-in Kinports's shoes and redeem. Whether such ment was entered upon this conditional verdict, which subsequently became final, and a writ of habere facias possesssionem was issued April 18, 1878, and the writ executed by delivering the premises to Jonathan Boynton. right would be of any value is not to the purpose. There was an interest, valuable or otherwise, to which the lien of the judgment attached, and we are of opinion it was error to instruct the jury to find for the defendant. with all my interest and legal estate in the land," etc., as collateral security merely. This interest was of such a character as before remarked, as to be liable to the lien of a judgment. It was equally capable of being conveyed or mortgaged. It was assigned to Williams as a mere pledge. It is well settled in this State that an assignment or conveyance to secure an existing debt or future advances, is but a mortgage without regard to its form. It is so if absolute upon its face. (Kellum v. Smith, 33 Pa. 158; Rhines v. Baird, 41 Id. 256; Myer's Appeal, 42 Id. 518; Harper's Appeal, 64 Id. 315; McClurkon v. Thompson, 69 Id. 305; Fessler's Appeal, 75 Id. 483.) The legal effect of the agreement between Moreover, we are of opinion that the assignGideon R. Kinports and Thomas Tozier, of Oc- ment by Gideon R. Kinports to John W. Wiltober 8, 1874, was to place the equitable title in liams was in legal effect a mortgage. It was an Tozier, while the legal title remained in Kin-assignment of the purchase-money of the real ports as security for the unpaid purchase-money.estate therein described and mentioned "together A judgment in this State binds the equitable as well as the legal title, hence it needs neither argument nor the citation of authority to show that the interest of Kinports or Tozier in the premises in question would be bound by the lien of a judgment so long as the contract remained unexecuted, and to the extent that it was unexecuted. If, on August 11, 1876, the day when the judgment No. 485, September Term, 1876, was entered, Gideon R. Kinports had parted with his entire interest in the property, there would have ⚫ been nothing to which the judgment could have attached as a lien. The assignment to Williams, however, was not an absolute conveyance of either the legal title or of the unpaid purchase- We hold that the assignment in question is but money. It was, as before stated, merely an as- an unrecorded mortgage. What effect it may signment as collateral to secure a debt less than have in any future contests is a matter not now the purchase-money remaining unpaid, while the before us. It is sufficient to say that it leaves no assignment from Williams to Boynton was of the doubt in our minds as to the right of the plainsame character. This left a resulting interest in tiff to revive his judgment against this land, and Kinports which was subject to the lien of a judg-Jonathan Boynton as terre-tenant, to the extent A judgment obtained against the vendor of Kinports's interest, whatever it may be. ment. In re Opening of "C" Street, in the Borough of Verona. In re Petition of Graver et al. or she shall suffer damage from the opening of the same, may apply by petition to the next Court of Quarter Sessions of the county of Allegheny for appointment of viewers to assess the damages; "and the same proceedings in every respect shall be had for the view, appraisement of damages, the report thereof, and the confirmation of the same, as are directed by the provisions of the General Road Laws of this Commonwealth." The petitioners prayed the Court for the appointment of three viewers, who were appointed accordingly. On September 12, 1885, the report of the viewers awarding petitioners $1500 was presented in open Court and approved nisi and ordered to be filed. On November 25, 1885, exceptions to report of viewers were filed by J. P. Speer; and on December 5, 1885, exceptions were also filed by the borough of Verona. On January 23, 1886, petition for review was presented in open Court by J. P. Speer, repreStreets-Opening of Boroughs-Road laws-senting that the viewers' report was inequitable Damages-Assessment of- When subject to and unjust. On the same day reviewers were review. An assessment of damages made under the general road laws is subject to review in the same manner and to the same extent in boroughs where the general road laws prevail as in townships. Newville Road Case, 8 Watts, 172, commented upon. Certiorari to the Quarter Sessions of Allegheny County. Petition by A. M. Graver et al. for the appointment of viewers to assess damages for opening "C" Street, in the borough of Verona. The petition set out that Michael Graver died on May 23, 1885, seised of a certain piece of ground in the borough of Verona; that the petitioners are the widow and heirs of said Michael Graver; that by ordinance of said borough, passed January 19, 1885, it was enacted that that part of "C" Street lying between Railroad Avenue and Sixth Street be taken for a public highway, and the same was thereby declared to be a public highway. That the portion of "C" Street directed to be opened is located upon said Graver's land, and that petitioners will suffer damage by reason of said location and opening in the sum of at least six thousand dollars. That the borough of Verona was incorporated by an Act approved May 10, 1871, and by the third section thereof, the Act incorporating the borough of Birmingham and its supplements are extended to the borough of Verona. That the Act incorporating the borough of Birmingham, approved April 8th, 1848, authorizes the town council of said borough to lay out, open and widen streets, etc., and provides that any owner or owners of ground, who shall consider that he (1) That by an Act of Assembly entitled "An Act authorizing the borough of Verona, in the county of Allegheny, to open any part, or parts of streets," approved the 21st day of April, A. D., 1873, it is provided: "That in all cases where damages have been assessed in favor of any property owner or owners, through whose property any street is or has been laid out or opened, under said general plan, or by virtue of any borough ordinance or ordinances, the said damages so assessed or to be assessed, shall be paid by said borough, or by whomsoever may be required to pay the same, within one year from the filing of the report of viewers appointed to assess said damages, and in default of the payment thereof, the said general or other plan, and do said street or streets, or parts thereof, shall be, and are hereby vacated, and declared to be abandoned, and said ordinance, or ordinances, shall be null and void." The said proposed C Street is a street in the said general plan; and the viewers' report of damages sustained by your petitioners was filed September 12, 1885, since which time more than one year has elapsed, by reason whereof, under the abovementioned Act, and the charter of said borough, the said street, or so much of it as passes through petitioners' land is vacated, and the ordinances and other proceedings in connection with the opening of the same have become null and void. (2) That under the charter of the borough of Verona there can be no review of damages. (3) That all of said viewers are not freeholders as required by law, the records disclosing that two of said reviewers, viz: J. J. Walker and Patterson are not freeholders. (4) That the amount of damages awarded to petitioners is against all the testimony produced and grossly inadequate, and petitioners ask that before approving, this honorable Court will appoint a commissioner to take the testimony upon the amount of damages for the information of the Court in disposing of this exception. (5) That petitioner for a review having filed exceptions to the viewers' report, and the same being undisposed of, was not entitled to review. (6) That the granting of the said review was irregular and illegal because the application for the same was not made within the time limited by law. The Court overruled the exceptions and confirmed the report absolutely. Petitioners took this writ assigning for error this action of the Court. Edwin W. Smith (George P. Graver with him), for plaintiffs in error. A review under the special Act relating to the borough of Verona is something unheard of and unwarranted. It has been repeatedly held that there can be no review where the viewers do not locate the street, but merely act as assessors of damages. Newville Road, 8 Watts, 172. Road in Bensalem Township, 2 Wright, 371. Durnall's Road, 8 Casey, 383. Road in Lewistown, 3 Nor. 410. William R. Blair, for defendant in error. That the remedy of a party dissatisfied with an assessment of damages is by an application for a review and not by exceptions, is fully settled by the following cases : Durrall's Road, 8 Casey, 383. may Road in Plum Township, 2 Pittsburgh, 184. Road in Kingston, 23 Pitts. Legal Jour. 88. Benton Township Road, 2 Luzerne Leg. Reg. 99. The Newville Road case (8 Watts, 178), cited by the plaintiff in error, was decided in 1839 under the old law of 1836, and since the Act of 1845 is no longer applicable; it be respectfully suggested, however, that the ratio decidendi of the last point considered in the opinion in that case is not altogether sound. The provision of the 25th section is: "In all cases of views for any purpose mentioned in this Act the respective Courts shall on petition of any person interested direct a second view or review for the same purpose, provided, etc." And it is difficult to see why it, the only authority for a review on opening a road, should not apply to a view of damages. It is the universal practice to grant reviews of roads under this section. The Court was entirely right in confirming the report of the reviewers. Road in Bensalem 2 Wright, 368. January 3, 1888. THE COUrt. This case depends on the power of the Court of Quarter Sessions to direct a review for the assessment of damages in the borough of Verona. The incorporation of this borough was not effected under the general borough law, but by a special Act of Assembly passed in 1871, which provided that the Act of Incorporation for the borough of Birmingham, in the county of Allegheny, and its various supplements, should so far as applicable, be extended to the borough of Verona. Birmingham was incorporated several years prior to the general borough laws of 1834, and by a supplement to the Act of incorporation, passed 8 April, 1848, it was provided that "the same proceedings in every respect shall be had for the view and appraisement of damages, the report thereof, and confirmation of the same as are directed by the general road laws of this Commonwealth." In 1871, when the borough of Verona was created, the directions of the general road laws in force in Birmingham became the law of Verona as to the proceedings for the view and appraisement of damages upon the opening of streets therein. What then is the rule, under the general road laws, upon this subject? Sec. 25 of the Act of 1836 provides that "in all cases of views for any purpose mentioned in this Act the respective Courts shall on petition of any person interested direct a second view or review for the same purpose, provided that application therefor be made at or before the next term of the Court after the report upon the first view." The assessment of damages sustained by the owners of lands over which a road was laid was one of the purposes mentioned in the Act for which viewers were to be appointed, and the phraseology employed, viz: "in all cases of views for any purpose mentioned in this Act" is as comprehensive as any that could have been employed. It was held, however, in the Newville Road Case (8 Watts, 172), that this provision did not authorize the appointment of a review to assess damages. The reasons given for this conclusion rest in part on the supposed inconvenience to result from the appointment of reviewers for this purpose, and in part upon the fact that the Act of 1836 provides for the ascertainment of damages by a separate set of viewers, and does not in that immediate connection provide for a review. This latter circumstance seems to have had great weight in the determination of that case. In more recent cases a different rule has been held whenever the Act of Assembly under consideration gave the assessment of damages and the location of the road to the same view. In Durnall's Road (32 Pa. Rep. 383) the local law for Chester and Lancaster counties provided that the viewers who located the road should assess the damages, and this Common Pleas. Court held that a review upon the subject of] December, 1887. Young v. Kline et al. Negligence-Statute of Limitations-Denial of liability by defendants and assertion that injury resulted from negligence of third person, is not such fraud as to toll the statute. Sur demurrer to replication. By the Act of 14 May, 1874, the general road laws were changed in this particular, and since that date the viewers appointed to lay out the road are required to assess the damages, and their The narr. set out that on August 22, 1883, report covers both subjects. The statutory pro- decedent was in the employ of the defendants vision under which Durnall's Road was decided repairing the boilers on board their steam yacht is now part of the general road laws of the Com-"Emma Kline;" that by reason of defendants' monwealth, and therefore the law of Verona negligence said yacht came in collision with and Borough. The only ground for a distinction lies was sunk on the day stated by the "Dauntless," in this, that in boroughs streets are laid out by a steamboat of the Gloucester Ferry Co. the action of the town council, and are under the general road law only for the assessment of damages. But there can be no doubt that the petitioners in this case would be entitled to a review if the road was in a township, by reason of the change in the general road laws referred to. What is there to justify the denial to a citizen of a borough of the right to a review which his neighbor living over the borough line would be clearly entitled to, while the damages in both cases are assessed under the general road laws? We are unable to see any good reason for such a holding, and accordingly hold the rule to be that assessments of damages made under the general road laws are subject to review in the same manner and to the same extent in boroughs where the general road laws prevail as in townships. The order of the Court below is therefore affirmed. Case, by widow and minor children of William C. Young, for negligence causing the death of said Young. Opinion by WILLIAMS, J. W. M. S., Jr. Defendants pleaded not guilty." Subsequently an additional plea of the Statute of Limitations was filed, to which plaintiffs filed replication that they ought not to be barred from maintaining the action, because the said plaintiff saith that immediately after the twenty-second day of August, 1883, the defendants falsely represented to the plaintiff that the collision which resulted in the death of William C. Young on the twentysecond day of August, 1883, as is in manner and form set forth in the plaintiff's declaration herein was due to no negligence or want of care on the part of the defendants, their agents and employés, but on the contrary was due to the gross carelessness and negligence of the Steamer "Dauntless" of the Gloucester Ferry Company, their agents, servants, and employés. Upon the representations and assurances so as aforesaid made by the defendants plaintiff ought to hold the Gloucester Ferry Company responsible in damages for the death of the said William C. Young, and it was not until June 3, 1885, upon trial of the cause against the Gloucester Ferry Company in the United States Circuit Court for the Eastern District of Pennsylvania of April Session, 1884, No. 44, that plaintiff had knowledge that the death of William C. Young was caused by the gross carelessness and negligence of the defendants, their agents, servants, and employés, as the defendants had deceitfully, fraudulently, and covetously represented to plaintiff in order to escape responsibility for the death of the said William C. Young. Defendants demurred to said replication, because the plaintiff has not in or by said replication traversed, or in any manner denied by tra |