Hoffman against Lee, 3 Watts 352

The opinion of the Court was delivered by Huston, J. We must recollect that a scire facias on a mortgage is a proceeding under

an act of assembly against the land mortgaged; that the judgment in it, is always to recover the amount due from the land : and no execution on such judgment can go against the other lands or goods or body of the mortgagor. All these may be liable, and maybe reached on a judgment on the bondsor notes secured by the mortgage, or in debt or covenant on the mortgage if it is so expressed as to give those actions, and perhaps in assumpsit for the amount of the mortgage, if not accompanied by a bond, and if the mortgaged premises do not produce the debt.

Hence, where the mortgagor has sold the premises embraced in the mortgage and given no covenant for title, a judgment on a scire facias on the mortgage cannot affect the mortgagor; it only sells the mortgaged premises, and so affects the vendee of the mortgagor; and this is more especially the case where the mortgagor is insolvent.

While Jacob Hoffman was the owner of the land in question, his admissions of the amount due on this mortgage were good evidence against himself; but he had sold in March 1828, and in the autumn following his admission of the amount due, though good evidence against himself in a suit 'on the notes, was no evidence against the vendee of the mortgaged premises; and that vendee alone, and not Jacob Hoffman, would be affected by the scire facias on the mortgage, and the judgment and execution on it.

For want of recollecting the special nature of the suit trying, and the judgment and execution on it, the judge fell into an error in admitting the admissions of Jacob Hoffman. Although Hoffman’s name stood on the docket as defendant in the cause, yet the issue trying was between Lee and Phipps. Hoffman had confessed a judgment, and as respects him there was nothing to try : it was Phipps who pleaded and defended, and who alone could be affected.

The plea ought to have appeared to be by Phipps; and if so, and a defence for the land by him, and' verdict and judgment for him, his land could not be affected by a judgment against Hoffman. Something like this occurs in a case where an heir takes lands at an appraisement in the orphan’s court, and enters into recognizance to pay the shares of the other heirs. By our law the lands are bound for the money.

If the lands, or any part of them, be sold, the purchaser is sued in the scire facias as terre tenant, along with the conusor; but they may sever in their pleas, and there may be judgment against the conusor, and a judgment in favour of the terre tenant who defends for his own interest; he may have a release, or may be discharged by lapse of time, and then a judgment against the conusor cannot affect the land of the terre tenant in whose favour there is a verdict and judgment.

And in such case it is decided that the admissions of the conusor, made after he had sold to the terre tenant, are not evidence against the terre tenant in a defence by him. 7 Serg. & Rawle 1. Those cases of a verdict and judgment for one defendant, and against another, in an action sounding in contract, have, by some, been considered, as very heterodox, and even said to be inconsistent with the common law; but a bill brought in by the late lord chief justice of the king’s. bench in England, has directed that there may be a verdict for one of two joint, or joint and several promissors in a note, &c. &c.

I suppose it will be admitted not to be contrary to the principles of the common law, but only to the former practice under that law. Generally, the admissions of a vendor are not evidence, made after he has parted with all interest in the land; though his declarations while owner, are evidence against him and those claiming under him, if he is dead, or still interested, or out of the reach of process of the court. Packer v. Gonsales, 1 Serg. & Rawle 526.

The point in the second bill of exceptions will not then arise, but the judge was right in rejecting declarations made at another time. 5 Serg. & Rawle 295; 7 Serg. & Rawle 1. The other objections made in this case all relate to the charge given to the jury by the judge; and although divided by the counsel into five, may be considered as.really only two.

The judge charged that the paper given by Lee to John Hoffman might be considered as a statement of the amount due on the mortgage at that time, but it was not a release, nor an agreement to suspend proceedings for four years, if the payments were made as there proposed; and if it was such an agreement, it was not binding ori Lee, because no notes or bonds were given by John, and therefore no consideration; and because John was not quite [twenty-one years of age when he received that paper, though he was of age when he’ assigned it to Phipps. ■ . - In the first place we are all of opinion it was a binding agreement: whether such a paper given to Jacob Hoffman, the debtor, would have been binding, is not the question, though if a mortgagee gives a writing to his mortgagor that he will accept a debt, presently due, if paid in instalments at specified times, and receives one or more of these as they fall due, it may in some instances be a great fraud to afterwards proceed before the other instalments fall due ; and I am not prepared to say that it would, under all circumstances, be void :. but that is not this case; it was here given to a person proposing' to purchase, and who, having received it, did purchase.

John probably knew that he.could not pay 100 dollars within a year, but might be very confident that he could, by his labour raise 25 dollars per year. In consequence of this paper he gave his gun, and he laboured for Lee to the amount of 37 dollars within the first year; now any injury to another, any labour on him, any hardship induced to him, is a good consideration to support an agreement and make a promise binding on him who made it.

It is not fair nor honest to make a promise which induces a man, a stranger to the party, to pay his goods and give his labour, to exchange his.own property for an incumbered property, on a promise not tó press the incumbrance, and then say, I make nothing by this indulgence which I promised you, and I will not’meet my promise: it cannot be doné after putting the other to loss of time or labour or property; or after, by such promise, inducing-him to do what lie never would have done but for reliance on such promise.

True, the mortgage was a deed under seal, and this not under seal, but it was, though informal, enough to induce John to exchange for that land and pay one-third of a debt which he was not liable for, and never would have been, except for that paper. And in equity it was as binding as if more formally drawn, and under seal and witnessed. In Livingston v. Byrne, 11 Johns. Rep. 555, we find a case like this in some respects, but infinitely stronger.

There, L. had a deed of trust of lands dated the 1st of December 1803; and on the 24th of December 1803 another deed, to L. aud to others, containing the lands in the first deed, and many other lands also, in trust to pay the debt of the grantor: on the 27th of December 1803, a judgment for a large amount was obtained against the grantor and an execution issued, and the lands comprised in the deeds of trust about to be sold by the marshal for this large debt which was due to the United States.

To induce purchasers to bid, the three trustees published in the public papers that they would, if required, release to any person who should purchase any of the Livingston lands, all. their right under their deed of trust of the 24th of December 1803. Byrne became the purchaser of half of eight hundred lots in the town of Esperanza (now Athens) for 11 dollars, a monstrous undervalue. J. R.

Livingston, the trustee in the first deed of the 1st of December, thought himself justified under the circumstances (although he agreed to release all right under deed of the 24th'of December) to retain these lots which were in his deed of the 1st of December. The chancellor held him bound, by his advertisement, to release all right under the first as well as the second deed of trust: he appealed, and the same was affirmed by the unanimous opinion of the court. Here was n.o. consideration to J. R.

Livingston ; the object of gettingafair price for the property had failed; his title was a deed under seal; his promise not under seal, a mere advertisement in a newspaper; that promise was not barely a promise to suspend payment, but to give an absolute release of all right to the property; and he was compelled to execute such release, because his parol promise was known and seen at the time of the sale, and induced Byrne to bid.

A parol agreement or engagement at one time w’eighed nothing in a court of law, when used against a deed or instrument under seal; but in equity the inquiry is, did the person make an agreement fairly and without any fraud or imposition, did he derive any benefit, or expect to derive any benefit from it, or did he induce any other person to incur expense or risk, or perform' service, or otherwise subject himself to loss or risk? and if so, the agreement is enforced, though not sealed. There is another point in which we think there was mistake in the court below.

A sum payable in four annual payments can in no sense be understood to be demandable within three years; if one of the payments was to be made on the day of the contract, it would be, and always has been, and is expressed, one-fourth to day and the residue in three annual payments. The first instalment was paid and one-half of the second, and the second was due when suit was brought; the suit was, therefore, commenced when nothing was demandable by the plaintiff. Judgment reversed.