Brick against Coster, 4 Watts & Serg. 494

The opinion of the Court was delivered by Kennedy, J. — This being an action of debt upon a bond, the plaintiff, unless the defendant filed a sufficient affidavit or affirmation of a defence, stating the nature of it, according to the Act of Assembly passed in this behalf, by a given day, became entitled to have a judgment for the amount of the bond.

The defendant made and filed an affirmation of defence within the time prescribed by the Act of Assembly, but the counsel for the plaintiff conceiving‘the defence therein- stated to be insufficient, moved the court below for judgment in his favour, and accordingly obtained it. The only question raised in the case, is as to the sufficiency of the defence set forth in the affirmation.

If insufficient, the court acted rightly in rendering judgment for the amount of the bond in favour of the plaintiff; but if sufficient, and the plaintiff denied the facts upon -which the defendant rested his defence, the cause ought to have been tried by the intervention of a jury.

The affirmation of defence shows that th'e bond in suit was given to Coster, the plaintiff, in trust for the New York and Schuylkill Coal Company, incorporated under the authority of the State of New York, to secure the payment of the purchase money of a tract of land situate within Schuylkill county of this State, sold and conveyed by the said company to the defendants named in the writ.

That the land was purchased under an assurance that the vendors would give a general warranty against all claims, and make- a good and sufficient title, free and clear of all claims, before the money for which the bond was given should be demanded. That a deed of conveyance, with a covenant for a general warranty of the title to the land, was made by the company to the defendants.

That although such a deed of conveyance has been made, yet the defendants had reason to believe.that there were adverse claims outstanding to the land, which existed anterior to their purchase of it, which had not been extinguished by the company. Now the effect of the covenant of general warranty of title contained in the deed, is only to bind the company to warrant and defend against legal and rightful claims made adversely to the land, and not agains't such as are invalid and cannot be made to affect the right and title acquired by the defendants under the deed made to them by the company.

Neither is there anything else set forth in the affirmation of defence which would bind the company beyond this. But the affirmation of defence does not contain an allegation that any of the outstanding adverse claims mentioned therein to the land is good, or believed by the affirmant to be so.

To make adverse claims to the land a defence against the payment of the purchase money, without an allegation of their being valid, or, at least, believed to be so, and that the defendant believes that he will be able to prove the same on trial of the cause, might be in effect to prevent the company from ever recovering the purchase money, however good and valid the title might be, which they had passed to the defendants, because adverse, invalid claims might be kept on foot to the end of time.

But it is objected that no title whatever for the land passed from the company to the defendants, because by the laws of this State the company, being incorporated under the authority of another State, were incapable of holding the land and transmitting the title received by them from their vendor to the defendants; that the title which their vendor had to the land, vested immediately upon their purchase of it in the Commonwealth by escheat.

The second section, however, of the Act of Assembly of the 6th of April 1833, entitled “an Act relating to the escheat of lands held by corporations without' the license of the Commonwealth,” (Pamph. L. 168), appears to be a sufficient answer to this objection.

By this section, it is enacted, “ that if the said associations (among the number of which associations it is said the company in this case was included), now engaged in mining, shall discontinue all their operations, under their several Acts of incorporation, within one year, then, and in that case, the Commonwealth does hereby release to the individuals composing said associations, according to their respective interests, all the right, title and interest which the Commonwealth has acquired to the real estate of said associations respectively, in pursuance of the laws and statutes relating to mortmain.” It would seem that the company must have ceased their operations of mining upon the land within the year after the passage of the Act, by selling the land and taking the bond in question, which is dated on the 25th of April 1833, only 19 days after the date of the Act, as a security for the payment of the purchase money.

It would therefore seem, that all claim which the Commonwealth had to the land by escheat, passed under the operation of the Act of Assembly, and the deed of conveyance made by the company to the defendants; consequently they ought to pay for it. Judgment affirmed.