| Pa. | Sep 15, 1839
The opinion of the Court was delivered by
For aüght that appears, the defendant below stands on the record in the character of an intruder. He gave no evidence of title in himself—at least none appears in our paper book—and the effort he made to defend himself, was directed against the title of his assailant. The rejection of the evidencé offered for that purpose, is the only thing to which he took exception, and it is, consequently, the only thing he can assign for error here. At common law, a writ of error lay not for error in law, which appeared not On the record; and, therefore, an allegation, oré tenus, of a thing overruled, could formerly not have been assigned) because it could not have appeared on the nisi prius roll. TO cure this defect of remedy, the statute Westm. 2, authorised thé proceedings at nisi prius, or so much of them as the party desired) to be made part of the record by bill of exceptions; but nothing is better settled .than that such a bill removes not the merits of thé cause, or any thing more than the isolated point specifically stated in it. In assigning error on a bill of exceptions, therefore, the party cannot allege that the verdict ought to have been for him; he must put his finger on some specific act of omission or commission by the court—omitted contrary to his request, or committed positively to his prejudice. I mention this, because the merits of the case have been argued pretty much at large, and, perhaps, on an assumption of particular facts that were not attempted to be proved. Thus it has been alleged that the verdict is wrong, for having found all the land for the plaintiff, because, as it is said, the levy and sale of Chess’s interest passed two-thirds of the fee to the sheriff’s vendee which were not included in his conveyance to the plaintiff. If that were so, and I pretend not to say it is not, the judge ought to have been required to make it a subject of special direction; and bis omission might then have been corrected on writ of error) which lies not, however, to the finding of a jury.
The defence attempted to be sustained by the rejected evidence, seems to have been, that the reimbursement of his purchase-motley made Millar a trustee for Chess, from whom it moved, that, chancery would compel him to reconvey; and, consequently, that there was an outstanding title in Chess, of Avhich the defendant might avail himself.
But taking payment of purchase-money without delivery of possession, to be such part performance of an unwritten agreement as takes it out of the statute of frauds, and that Chess bad reacquired the beneficial interest, what has an intruder to do with an outstanding equity in a third person? The sheriff’s deed undoubtedly clothed Millar Avith the legal title which is sufficient to found a recovery against a wrongdoer; and this title passed by his con*
If Chess is to be taken for the equitable owner, the legal title of Millar, whieh I have said is an effective one for a recovery at law, nevertheless passed to the plaintiff; and it has never, till very lately, been doubted that an intruder cannot set up an outstanding equity in the person for whose benefit the title is attempted to be enforced. If authority were wanted for a principle so plain, it might be had in Parker v. Lee, in the fifth volume of Wharton’s Reports. If Millar then might have maintained an ejectment, why may not the plaintiff his grantee? As already shown, the conveyance of a trustee is not void, but passes the legal estate, and substitutes the grantee as trustee in the grantor’s stead.
But it does not follow conclusively that because Chess reimbursed the sheriff’s vendee, the trust created by it, resulted to himself. Even had Millar conveyed to him, he might have executed a declaration of trust in favour of his wife; and his assent to Millar’s conveyance to a third person on the same trusts, would necessarily have the same effect. Such a declaration by one indebted, would indeed be void as to creditors; but it would be valid as to every one else, and consequently as to a wrong-doer. The defendant, however, claims to be considered as if he stood in the place of Chess; but for what reason I am at a loss to discover. No conveyance from Chess or privity of estate with him, was offered to be shown; and it is doubtful whether the defendant and he stand even in the relation of debtor and creditor; for if, as it is alleged,
The matter contained in the second bill of exceptions, was offered to show that Millar’s purchase of the husband’s freehold in right of his wife, was merged in the mortgage subsequently executed to him, of her reversionary estate in the fee. What effect that might be supposed to have on the plaintiff’s title, I cannot discern. Had Millar procured the entire fee simple, he would not have been the less competent to convey it or a part of it. The argument on this part of the case, however, has very properly not been pressed; for it would be impossible to maintain it. We have heard of the merger of a mortgage in the title, but never before of the merger of the title in a mortgage. In the case of a mortgage, merger is producible only by joining the ownership of it to the ownership of the equity of redemption; and then it is the incumbrance which becomes extinct, not the title. But it. is produced, by this or any other means, in no case in which it is the interest and intent of the incumbrancer to keep the incumbrance afoot. Dougherty v. Jack, 5 Watts 457; Forbes v. Dougherty, 18 Ves. 385; and Helmbold v. Man, 4 Whart. 42. In the first place, then, there was no union of the mortgage, or of the freehold jure uxoris, with the equity of redemption; for Mrs Chess had not parted with it, and for that reason alone merger was impossible. But to have merged the freehold which Millar had bought at sheriff’s sale, would have subjected him, whenever the mortgagors happened to redeem, to the certain loss of what he was to pay for it—a loss he never intended to incur—and on a question of merger, intention is decisive. It was doubtless a notion that the mortgaged estate when redeemed, drew back with it, by accumulation, the purchased freehold of Millar, which induced the counsel to broach the doctrine of merger as available. How unjust it would be to despoil him of his property by its supposed cohesion with a security given for his benefit, it is unnecessary to say. Even if there could be such a thing, the enormity of it would raise a decisive presumption of intention adverse to it. The matters contained in the bills of exceptions, therefore, were properly excluded.
Judgment affirmed.