| Pa. | Jan 5, 1880
delivered the opinion of the court, January 5th 1880.
This action of ejectment was brought by the defendant in error to recover the purchase-money appearing to be due on a contract for the land made between him and Paige. The object of the evidence offered by the plaintiffs in error and rejected by the court, was to show that the instrument, in form an agreement for the sale and purchase of the land, was in law only the defeasance of a deed absolute on its face, but in fact a mortgage executed by Paige to the defendant in error ; and that the sum mentioned in the contract given in evidence by the latter, contained excessive and usurious interest. The rule that a deed absolute on its face may be shown, by parol, to have been intended as a mortgage, is too well established in Pennsylvania to need the citation of authorities. If then the deed from Paige to the defendant in error was a mortgage, and the article of agreement entered into between them was intended as a defeasance, and a device to secure the payment of usurious interest, and the defendant in error now claims to
Cooper, one of the plaintiffs in error, claims title by virtue of his purchase at sheriff’s sale as the property of his co-plaintiff, Paige. The judgment on which it was sold was entered after the deed from Paige to the defendant in error and after the contract of defeasance were recorded. Inasmuch, however, as the defeasance was not recorded in the mortgage-book, but in the agreement-book, it is claimed that it was improperly recorded, and, therefore, if in fact a mortgage, the sheriff’s sale passed a title discharged therefrom. It may be conceded that this was the correct view under the authority of Luch’s Appeal, 8 Wright 510. That case, however, has been expressly overruled by Glading v. Frick, 7 Norris 460. It is there held that such an instrument of writing is properly recorded in any book kept by the recorder of deeds. Cooper then bought subject to the claim óf the defendant in error, conceding the conveyance to have been a mortgage. If a mortgage, the latter can recover no more than the sum loaned, which it was given to secure, with legal interest thereon. The assignments are substantially sustained.
Judgment reversed, and a venire facias de novo awarded.