Richardson against Kuhn, 6 Watts 299

Per Curiam. There is nothing in the objection to the plaintiffs’ evidence; but it is impossible to discover an available objection to the evidence offered by the defendant. The action is to enforce the payment of purchase money; and the plaintiffs insist, that the defendant is bound to pay, or surrender the possession obtained under the articles. He may be bound to do neither.

The articles have not been exhibited to us; but it is to be presumed that he bargained for a title, and should it appear that it is not in the plaintiff’s power to make it, they may not call on him to turn out without rescinding the bargain, restoring purchase money paid, and tendering compensation for intermediate improvements. It is not pretended that they have done this; and what did the defendant offer to show ? Directly that the land had been conveyed by the plaintiffs’ ancestor, and sold to a third person on his mortgage for the purchase money.

It may turn out to be true in fact, as the plaintiffs say, that this third person had bid the land in as their ancestor’s agent, and that he procured the sheriff’s conveyance to be made to himself surreptitiously; but that is matter to rebut and not to exclude. The evidence ought, therefore, to have been received. Judgment reversed, and a venire de novo awarded.