Kunkle against Wolfersberger, 6 Watts 126

The opinion of the Court was delivered by Gibson, C. J. A formal conveyance may certainly be shown to be a mortgage by extrinsic proof, while a formal mortgage may not be shown to be a conditional sale by the same means. In the one case, the proof raises an equity consistent with the writing, and in the other would contradict it; which seems to be the principle of Woods v. Colwell, 3 Watts 188. Was the quality of the evidence unexceptionable in other respects ?

Betwixt the grantor and the grantee, the admissions of the latter would be clearly competent; and though the offer was not restricted to admissions before the latter had conveyed to his co-defendant, none else were actually given to the jury. But the admissions were those of a party of record, and therefore, unexceptionable in any view. As to the proof of knowledge before the co-defendant had ¡rurchased, it is sufficient to say, it was not pretended that he has paid the entire purchase money; so that the error, if there were one, was in an immaterial part of the inquiry.

But proof of an agreement to indemnify the co-defendant against disturbance from this particular quarter, would be proof of notice by one competent to give it. The exceptions to evidence were, therefore, properly overruled. The exceptions to the charge are like those that preceded them.

It is too late to say that what was intended to be security for a loan, may become a conditional sale by the accidental form of the transaction; or that an agreement to make it such in default of payment at the day, shall not be relieved against; or that the jury are not the proper judges of the intention, or that a purchaser with a part of the purchase money in his hands, may be protected beyond reimbursement. These are elementary matters not open to discussion.

The only original thing in the cause, and it is not of difficult solution, is the effect of the lease from one of the defendants to the grantor, under whose title the plaintiff claims, which is said to be a decisive circumstance, either to rebut the alleged mortgage originally, or to dissolve the relation created by it, if it ever existed; and that it is matter of law for the court. But why should the relation of landlord and tenant be thought inconsistent with that of mortgagor and mortgagee ?

Without it, a mortgagor is an occupant liable to be turned out at a moment’s warning; and it is hard to imagine why a stipulation for a term certain, at a rent equivalent to the interest, may not be reconciled to the intention of the principal contract. So far as

interpretation was concerned, the court was the arbiter, and had there been a question about the nature or extent of the covenants, it must have decided it; but the object of the arrangement and the indications to be answered by it, were extrinsic, and for the jury. Nothing presented by this multifarious assignment of error, calls for correction. Judgment affirmed.