
    [Sunbury,
    June, 1827.]
    TOD, Administrator of BEALE, against GALLAGHER.
    in error.
    The vendee of land, in a suit for the consideration money, may .defalk the amount paid by him for existing incumbrances: but he is liable to the vendor for any balance beyond that.
    Writ of error to the Court of Common Pleas of Mifflin county, in a suit brought by Thomas Tod, administrator of Thomas Beale, against Robert C. Gallagher, in which a verdict and judgment was rendered in favour of the defendant.
    It was an action of debt on two notes, of one hundred dollars each, given by Gallagher to Thomas Beale, in his lifetime, dated each, 30th of June, 1821, one payable on the 1st of April, 1822, and the other on the 1st of April, 1823.
    Plea, payment with leave, &c. The defendant proved, that the notes were given in part payment, for a house and lot in Mifflin town, sold by Beale to Gallagher, for three hundred and fifty dollars, by article of agreement, dated 17th of February, 
      1821, and a deed from Beale to Gallagher, with general warranty, dated June 20th, 1821; after which, on the 30th of June, 1821, Gallagher gave the notes in question. Gallagher entered into possession of the house and lots, and is still in possession.
    The defendants then showed that the house and lots had been bought by Beale from one Daniel Crawford: that while Crawford owned the property, a judgment was entered against him in favour of E. Banks, for one hundred and thirty-four dollars and twenty-two cents. After Gallagher’s purchase, and after he took possession, a fieri facias on this judgment was levied on the house and lots; and they were sold and purchased by Gallagher for one hundred and fifty dollars. The paper book stated they were not sold until after the two notes of one hundred dollars from Gallagher to Beale fell due; but it was alleged this was contrary to the fact, and that the sale took place before the last note was due.
    The plaintiffs admitted the defendant was entitled to credit for the amount he paid for the incumbrance: viz. one hundred and fifty dollars, and claimed only the balance due on the notes after allowing such credit; and asked of the judge to charge the juiy, that the plaintiff was entitled to. recover such balance. In the abstract of the charge, it was stated, “ this the court refused, and charged the jury, that by the article a clear deed was to be made on the payment of three hundred and fifty dollars; these were mutual and dependent covenants. There being a lien and incumbrance on the land, when the payments were due, Gallagher might have refused to give his notes until that incumbrance was removed. I do not think the position of the plaintiff’s counsel is sound; and it is my opinion, and that of the court, that under the evidence in the cause, the plaintiff cannot recover.”
   The opinion of the court was delivered by

Huston, J.

Seldom has a cause been brought before a court more defectively; the judge takes no notice of the facts: viz. that notes had been given, or that a deed had been given; but says that Gallagher was not bound to gives his notes. Neither the article nor the deed are before this court; nor are they in possession of the counsel. What covenants are in the one or the other, is unknown, except in the vague statement above given. It happen^ much too often, that causes are brought before us so defectively, that our decision must be unsatisfactory to a certain extent.

Whether there was any warranty in the articles, or, if any, to what extent, it left too uncertain. How far the deed and notes given put an end to, and extinguished the articles, is not so precisely known as could be wished; and whether the covenant of warranty in the deed was a warranty of seisin, against incumbrances, or for quiet enjoyment, or of all of them, is not apparent

The existing incumbrance is the alleged breach of that covenant. Now an incumbrance is a breach of such covenant, precisely to the amount of the incumbrance: if the incumbrance is two hundred dollars, and the price of the land two thousand dollars, it will not enable the purchaser, in ordinary cases, to recover back his two thousand dollars, if he has paid it; or to retain the two thousand dollars, if unpaid. An adverse title to the whole property may enable the party to retain all the purchase money; an adverse title to one-fourth of it, may enable him to retain in proportion to its extent and value. In this case, a part of the money being unpaid, Gallagher might have paid off the incumbrance, and retained its amount, but no more than its amount: if the incumbrance had exceeded the money due on the whole price of the property, it might have enabled him to resist the payment of any more, or to have recovered the whole as part of what he had paid.

There may be cases where a purchaser buying property incumbered by liens not yet due, may accept a covenant against them, and agree to pay the purchase money, although they remain a lien on the land: but where this is not expressly, or at least,-evidently the contract of the parties, a purchaser may always pay off a lien and retain its amount out of money due the vendor. Poke v. Kelly, 13 Serg. & Rawle, 165. I speak of liens reduced to certainty of amount, admitted and due. If the purchaser does not pay them off, but suffers the property to be sold, and it- goes bona fide to a stranger, he may or may not be released from the payment of any more mohey to the vendor, according to the contract and the facts and circumstances of the case. Here the incumbrance cost him less than he owed the representatives of T. Beale. The property is not gone to a stranger; he still has it. Justice requires he should have a credit for what this incumbrance cost him, and the samo justice requires he should have credit for no more than it costs him.

Judgment reversed, and a venire facias de novo awarded.  