It lay on’the defendant in this action to show that the title he had accepted was positively bad, and that there was a superior and indisputable title in another person, asserting such title : 5 W. & S. 51. The action was not on a contract, but a scire facias on the mortgage to compel the payment of the balance of the piu’chase-money. On a contract executed, even to show the title doubtful, would not avail the defendant: W. 57. Here there was no covenant broken. The plaintiff in error accepted the title, and took his warranty with full knowledge of the alleged adverse title. He shall not detain the purchase-money when his possession has not been disturbed: Lighty v. Shorb, 3 Penn. 447.
Neither the bills of exception to evidence, nor the errors assigned to the charge, have any foundation in law to support them.
The judgment is affirmed.