10 Pa. 73 | Pa. | 1848
This is not like the case of Eighty v. Shorb, so much relied on. There the defect was on the .face of the title purchased by the defendant, and the maxim of caveat emptor entered. Equity could not interfere, because it would have been changing the terms of the bargain. This case is very different. Here Eucas sold one-third of the premises for the consideration of $3,000, the price he asked for the estate, and for which she gave her mortgage'.
The plaintiff having read the mortgage, the defendant then gave in evidence her deed, with covenant of special warranty, and then gave in evidence a mortgage, given by a Henry Moliere, a former owner, to the Bank of North America, a portion of which she had to pay, and showed the payment of about $1,667, her proportion of that mortgage.- Our law is settled, that in all cases where bonds, mortgages, or single bills are given for land sold, the debtor may give in evidence liens and encumbrances against the grantor or those under whom he claimed, previous to his purchase,
A purchaser is allowed to pay off encumbrances: Tod v. Beale, 16 S. & R. Ib. 263. So a purchaser may detain for encumbrances: 1 W. 248. The encumbrance, although not paid, is a good defence: 13 S. & R. 165. If she bought the premises for $3,000, and that was the whole consideration, she ought not to pay more than she, contracted for; and if there was more to pay than her deed called for, the plaintiff was bound to show it satisfactorily to the jury. The court fell into manifest error when they instructed the jury that the only question was, whether Mrs. Wolbert knew of the existence of the mortgage to the bank, at the time the contract was made and the deed executed. Under the evidence exhibited in the paper-book, she ought to have had the instruction of the court in her favour, and a credit for all .the payments made to the bank on their mortgage.
The judgment is reversed, and a venire de novo awarded.
