
    PHILIP JONES v. J. B. PIERCE.
    APPEAL BY PLAINTIEE EROM THE COURT OE COMMON PLEAS OE LUZERNE COUNTY.
    Argued April 16, 1890
    Decided May 5, 1890.
    
      (a) In an action of ejectment for lands held by the defendant under a sheriff’s deed made upon a sale under judgments in his favor against the ejectment plaintiff, the latter sought recovery on the ground that the transaction was in effect a mortgage, and that he was then entitled to a re-conveyance of the lands:
    1. The evidence affecting the defendant’s title, as an absolute conveyance, not being sufficiently clear, explicit and unequivocal, in respect of the facts sought to be established and relevant to the issue, it was not error for the trial judge, sitting as a chancellor, to direct a verdict for the defendant.
    Before Paxson, C. J., Green, Clark, Williams and Mc-Collum, JJ.
    
      No. 352 January Term 1890, Sup. Ct.; court below No. 52 January Term 1887, C. P.
    On November 24, 1886, Philip Jones brought ejectment against J. B. Pierce. Issue.
    At the trial on May 18, 1888, it was shown in substance as follows:
    In 1878, there were three judgments against Philip Jones, the plaintiff in this action, which were liens upon his estate in the lands in controversy, that estate being an equitable interest in him as a purchaser from Abraham Nesbit under a contract upon which about $250 purchase money remained unpaid. Two of these judgments were in favor of J. B. Pierce, the defendant in this action, and the other in favor of Davis & Co. They were all in charge of Mr. J. A. Opp, as attorney of record. Executions upon all the judgments were levied upon the lands in controversy, and, at a sheriff’s sale on July 20, 1878, Jones’s interest in the lands in dispute was sold for $30 to Mr. Opp. The sheriff’s deed to Mr. Opp was acknowledged and delivered on September 16, 1878, and on September 30, 1878, Mr. Opp conveyed the same interest to J. B. Pierce, for $30, Mr. Pierce having paid to-Mr. Opp the amount due upon the Davis & Co. judgment. On receiving the deed from Mr. Opp, Mr. Pierce took and remained in possession of the lot and the houses thereon; leased the houses to tenants, among them Mr. Jones himself; received the rents; was assessed with and paid the taxes; paid the insurance; made improvements and erected one new building costing $1,600; and, on November 5, 1883, paid the balance of purchase money due to Nesbit, from whom he then received the legal title.
    To break down the title of Mr. Pierce thus shown,.the plaintiff Jones introduced testimony and raised questions sufficiently appearing in» the charge to the jury, WOODWAK.D, J.:
    On November 23, 1886, some years after the sale to Pierce, Philip Jones brought this action of ejectment, to recover the land in question. In support of his claim of title he has undertaken to show that the sheriff’s sale on the Pierce judgment was made under an arrangement and agreement between himself and Pierce, which was, in substance, that Pierce was to take the title and hold it until certain indebtedness of Jones to Mm was liquidated and paid off, and that then the land was to be re-conveyed by him to Jones, and all the interest of the former was to be extinguished and the same was-, to be wholly-vested in Jones; in other words, that the title obtained through the sheriff’s sale and the conveyance by Mr. Opp\was to be held as a security for the payment of certain indebtedness, and for that purpose only, and that the deed, although absolute on its face, was, in fact and effect, a mortgage merely, bAreason of the contract between the parties. \
    In order to establish this claim, the plaintiff has cVlled numerous witnesses; first, the plaintiff himself, who swears that some three or four months before the sheriff’s sale, Pier'ce was pressing him for money due. He replied that owing tq the hard times and to his own embarrassment he could not pay. Pierce said to him, “ If I had this property I could make it pay more than you are receiving for it, and the better way will be for me to take the title, and lease the houses to you and others, and apply the rent to the indebtedness.” That subsequently they went to the house of Jones, and there in the presence of Mrs. Jones, the wife, and one, perhaps two, of the sons, talked this matter over again, and that Pierce said that if the arrangement were made, Jones would get the property back, etc. That this was agreed to; that Pierce took the propertjr by reason of the sheriff’s sale and the conveyance from Opp, and' continued to collect the rents; that he, Jones, has demanded, several times at least, the property back, and finally in 1885, notified Pierce that he would now see what could be done, presumably by legal proceedings. These negotiations, as far as the evidence shows, began in the fall of 1878, and seem to have continued down to 1885. That a sale was made in March, 1878, which was set aside at the instance of Jones himself, as he explains, because Pierce had neglected or refused to give him the agreement for a re-conveyance. Then came a second sale, the sheriff’s sale of July, 1878, although no written agreement seems to have been made meanwhile. The plaintiff then or about that time went west, and his family remained as tenants in one of these houses. He returned from the west in 1888. That substantially is the testimony of the plaintiff, gentlemen, in this case. To corroborate this evidence, the plaintiff calls Ills wife, ’Mrs. Jomes, and she, as you will remember, stated that she was present and heard the conversation referred to by the plaintiff as/go the nature of this transaction, and corroborates her husband tó a certain extent, certainly. Then Griffin Jones, a son of the/plaintiff, was called, and he testified that he was present in/the room at the time of the conversation between Jones, hi'., father, and Pierce, and he corroborates the statement of /Mr. Jones in regard to what occurred there at the time.
    Now/gentlemen, this is all the evidence of a direct character in thiss case, as to what, occurred between the parties before the sheriff’s sale, in regard to this agreement. We have other evidence showing that Philip Jones was indebted to Pierce ; that Pierce had made payments to him from time to time, had advanced money to him in one form and another, and that a judgment of 26th of February, 1875, was given as security for these advances, the amounts of which are shown by a paper of the same date as the judgment itself. We have also other state* ments of the accounts between the parties, of later dates, showing the nature and amount of the indebtedness of Jones to Pierce. The other testimony in the case, on the part of the plaintiff, consists of the evidence of several, witnesses, namely, Mrs. Markham, Mrs. Powell, George Richards, Mrs. Price and William Price, as to declarations made by the defendant after the sheriff’s sale, to the effect that he Pierce did not want this property, but only the money that was coming to him, and, in the one case, that he only owned the property until his debts due from Jones were paid to him.
    We have then on the part of the defendant, some rebutting testimony. Mr. Pierce is called as a witness in his own behalf and for the purpose of rebutting the testimony of the plaintiff. He explains to you all his transactions with Jones, his advances of money to Jones to enable him to go to the west. He states that after Jones’s return there was a balance due him, Pierce, over and above the collections which he had made meanwhile, etc. He denies utterly the allegation that there was any conversation amounting to a contract, or any talk at all, before the sheriff’s sale, with Jones, except that he made statements to Jones that he wanted his. money and must have it. He also explains to you the payment of the judgment of Davis & Co. represented by Mr. Opp, and of the building association claim, He states, further, the improvements he has put .upon the property and what expenses he incurred in maintaining the houses in proper condition. He also denies that • there was any talk between him and Jones, after the sale, about the application of the rents, and states that no account at all was kept by him with Jones, after the sale; that he frequently met Jones, but that this subject was not alluded to between them, after the sheriff’s sale. "We have also some evidence of the .value of the property, the purpose of which was to show that the debt owing, as it was claimed, by Jones to Pierce, was equal or nearly equal to the market value of this property at the time of the sale.
    Now, gentlemen, I have tried, in a general way, and fairly, to state this case as it appears on the one side and the other, from the evidence. It is now my duty to instruct you on the law of the case as I understand it. And we say to you at the outset, as matter of law, that a deed purporting to be an absolute conveyance may be shown by parol evidence to be merely security for a debt. But, in order to effect this result, the evidence must be clear, explicit and unequivocal, and the agreement must he contemporaneous with the execution and delivery of the deed, or substantially so. If the parol evidence be insufficient to move a chancellor to compel a re-conveyance of the land in a proceeding in equity, it is not sufficient to justify a recovery in ejectment. In an action of ejectment founded upon an equitable title, it is the duty of the judge to consider and to weigh the facts for himself; and, if he is of the opinion that the evidence does not make out a case which would induce a chancellor sitting in equity, to decree a conveyance, it is his further duty to give the jury what are called binding instructions on the subject. In this connection I will read a brief extract of a recent case decided in 1885 by our ■ Supreme Court. I refer to Null v. Fries, 110 Pa. 528.....
    We cannot say that the evidence in this case, to establish the allegation that the deed in controversy, under which the defendant claims title, is a mortgage and not an absolute conveyance, is clear, explicit and unequivocal. Because first, the agreement testified to by the plaintiff and corroborated to some extent by his wife and son, and by them only, is not, strictly speaking, contemporaneous with the sale, nor sufficiently clear and explicit ip its terms, to satisfy the rule of law to which we have referred. Secondly, the sheriff’s sale was made to Mr. Opp upon three several executions, two of which were issued upon judgments held by Pierce against Jones, and one of which was issued upon a judgment held by another party; and there is no sufficient evidence that Pierce controlled the executions in the sheriff’s hands other than his own. The plaintiff in this other judgment was not a party to the alleged arrangement that the sheriff’s deed was to be in effect a mortgage merely. Thirdly, it is not clear from the evidence that the defendant has been fully repaid for all the advances and payments made by him for the plaintiff, including taxes, insurance and reasonable repairs and improvements, and advances made since the statement shown in evidence. Fourthly, the parol declarations made by Pierce to various parties, after the sale, are not of themselves sufficient, under the adjudicated cases, to justify the coiiclusion that the deed was to be considered a mortgage.
    —The court then directed the jury to return a verdict in favor of the defendant. A verdict having been returned as directed, and judgment entered thereon, the plaintiff took this appeal assigning, inter alia, the order directing the jury to return a verdict for the defendant, for error.
    
      Mr. T. B. Martin (with him Mr. H. W. Palmer), for the appellant.
    Counsel cited: Null v. Fries, 110 Pa. 528; Todd v. Campbell, 32 Pa. 250.
    
      Mr. William S. McLean (with him Mr. J. A. Opp), for the appellee.
    Counsel cited: Plumer v. Guthrie, 76 Pa. 441; Burger v. Dankel, 100 Pa. 113; Nicolls v. McDonald, 101 Pa. 514; Kellum v. Smith, 33 Pa. 158; Barnet v. Dougherty, 32 Pa. 371; Jackman v. Ringland, 4 W. & S. 149; Carhart’s App., 78 Pa. 100; Pancake v. Cauffman, 114 Pa. 113; Washabaugh v. Stauffer, 81* Pa. 497; Lance’s App., 112 Pa. 456.
   Per Curiam:

Judgment affirmed.  