
    [Pittsburg,
    September, 1827.]
    HAWTHORN against BRONSON.
    IN ERROR.
    Mode of administering equity in Pennsylvania,
    
    A vendee of land, by articles not recorded, pays the first instalment, and for near six years takes no further steps to comply with the contract: the vendor then sells to a third person, who was led. to believe by the declarations of the first vendee, that he had relinquished the contract, and who goes on to make valuable improvements: if there was no fraud in the second vendee, he is entitled to hold the land against the first vendee; and the latter must look to the vendor for the purchase money he has paid.
    A person who had become surety for a vendor to the first vendee, for the performance of his contract, is a good witness for the second vendee, to prove that the former had relinquished his contract.
    Writ of error to the Court of Common Pleas of Mercer county.
    Ejectment by James Hawthorn, the plaintiff in error and plain» tiff below, against Thomas Bronson, for donation, lot No. 804, containing two hundred acres.
    The plaintiff claimed under articles of agreement under seal, between himself and George Decamp, dated the 10th of October, 1818$ the defendant under a deed from Decamp and wife to him, and George Shilling, dated the 30th of January, 1824, and recorded the 29th of September, 1824.
    The articles “ witnessed, that Hawthorn had purchased from the said George, a certain lot of land, (the premises in dispute,) for the sum of five hundred and eighty dollars, in manner and form following, viz. one hundred and fifty dollars in hand, including two demands in favour of Jonathan Smith and Charles ■ Beno, amounting to about forty-five dollars, and one hundred and thirty dollars, on the 1st of April, 1819, provided the said George Decamp makes .a good and sufficient deed for the said premises; otherwise, payment to be delayed, until title is made; and on the title being made the said Hawthorn binds the land by mortgage to'the said George Decamp, as the surety for the balance of the money, then unpaid, which balance is to be paid by Hawthorn in annual payments of one hundred dollars each, until paid; and in consideration of these presents, the said Decamp authorizes the said Hawthorn to enter on and take possession of the said premises.”
    At the same time the following bond of indemnity was executed:
    “ Know all men by these presents, that we George Decamp and Jacob Trout, of the county of Mercer and state of Pennsylvania, are held and firmly bound by these presents to James Hawthorn of the borough of Mercer, in the penal sum of two thousand dollars, lawful money of the United States; and we authorize Thomas J. Cunningham, or any other attorney of record to appear for us, and enter judgment in any competent court within this commonwealth. Witness our hands and seals this 10th day of October, 1818. The condition of the above bounden George Decamp and Jacob Trout is as follows: if the said Decamp performs all the conditions of an article of agreement, attached to this instrument, and bearing even date herewith, then the above obligation to be void; otherwise to remain in full force and virtue. Witness our hands and seals, this date above written.
    
      George Decamp.
    
    
      Jacob Trout.
    
    On the articles, were the following indorsements.
    It is further agreed, that Hawthorn is to have, twenty dollars, out of the next spring’s payment, as a compensation for selling the Said land. George Decamp.
    
    
      Thomas Templeton.
    
    Received, on the date above, one hundred and fifty dollars on the within contract: witness my hand this 18th day of October, 1818. George Decamp.
    
    
      Thomas S. Cunningham’s deposition was then read, that sometime in the month of September, 1824, he, in pursuance of a written authority from Hawthorn, tendered to Decamp one hundred and ten dollars, being the amount of money due by Hawthorn to 
      Decamp, on an article of agreement for the tract of land, on which Thomas Bronson then resided, and for which this ejectment is brought, and demanded a deed to the said Hawthorn, agreeably to said article. He told Decamp, that if the- money tendered was not enough, he would pay the proper amount. Decamp said, you need make no tender, you need not count the money, I agree you have tendered enough, I will not make a title to Hawthorn,” or words in substance the same. The tender'was made before this suit was brought. That some time before, of about the time Bronson was purchasing the said tract of land from Decamp, or paying part of the purchase money, he told the said Bronson he had better not purchase from Decamp, or pay him, as Decamp had sold the land to Hawthorn, and that Hawthorn would give him trouble, or turn him off the land at that time. _
    
      John Hawthorn stated, he heard Thomas Bronson say he knew of Hawthorn’s claim -of his purchase, but that Jacob Trout had told him Hawthorn had given up, and that he would not have purchased but for that, and if he were put to trouble, he would blame Trout for it. He saw Bronson on this land in February, 1824. Being cross-examined by the defendant, he stated that he lived there in November, 1824; there.were considerable improvements; two cabins, and one end of a cabin barn: he could not say how much clear land; it might have been fifteen or twenty acres; he understood Bi'onson had made these improvements. Being reexamined, he stated that in February, 1824, Bronson said to Hawthorn, I understand you are going to bring an ejectment against me:” Hawthorn said he would have to see to himself: Hawthorn said, now Bronson you blame me for not taking Decamp’s deed, and what have you done more than I have done? Decamp promised you, as he did me, to get the release of the rest of the heirs, and he has not done it.” Bronson’s reply was, Yes, we have done more, we have made a tender of the money.” Bronson then said, 44 Trout had told him Hawthorn had given up.” Bronson said, 44 I think you told me something like that yourself, and that you would have nothing to do with it.” Hawthorn said, 44 it was the deed.he would have nothing to do with, without the release of the heirs.” ■ Hawthorn asked Bronson, 44 what have you done more than I have? you paid two hundred dollars, and I paid one hundred and fifty dollars.” Bronson said, 44 we have done more, we have tendered the money. ” Hawthorn said, 44 did I not give you warning, and tell you spt to have any thing to do with Decamp: you will find him a troublesome fellow.” Bronson replied, 44 yes, you did.” I cannot say they mentioned as to what time the former conversation between them, should have taken place.
    
      Samuel M‘Kay testified, that before Bronson’s purchase, fehe and the witness had a conversation respecting Hawthornes purchase, but he could not recollect the substance or amount of it; he could not recolleet Bronson’s words, but he understood him he did not regard Hawthorn’s claim.
    
      Thomas Templeton stated, he understood that Hawthorn had sold to one Hunter. Trout seemed to manage Decamp’s affairs. The contract between Hawthorn and Hunter, and Trout for Decamp, was disagreed to by Hunter. Hawthorn was to get twenty dollars, for finding a purchaser, as was indorsed on the article.
    The defendant offered Jacob Trout as a witness; the plaintiff objected, but the court admitted, him and sealed a bill of exceptions.
    
      Jacob Trout testified, that in February, 1822 or 1823, when the deed was shown to Hawthorn, he said the title was good enough. This was in Graham’s house, and on the pavement in this town. Hawthorn said he had failed in his contract as to payment. Hawthorn advised Haywood to take the land, for the title was good, and he had failed in getting his money, and could not pay. Hawthorn \yanted Haywood to take the land from Decamp. I told Bronson the thing was dead, as Hawthorn was cast in Pittsburg. I did not tell Bronson what took place at Graham’s before, he bought. I made the first bargain with Bronson, eighteen months after the conversation at Graham’s. Haywood was at that time at Graham’s.
    
    
      William Haywood testified, that in 1819, in the fall, Hawthorn asked him if he heard of Decamp: witness said not. He said he wished he would come out and make his title; that he had a good opportunity to sell, so as to pay Decamp and have a handsome profit to himself, and wished me, if I had an opportunity, to send Decamp word. Decamp was out the next season, at my house: he said Hawthorn had a mind to give up the contract, and wished me to purchase. I agreed to meet him in Mercer; we did meet in Mercer, and Hawthorn was there also. I asked Hawthorn, if he had agreed to give up the contract. He said he had sold the land to Templeton; that he would go and see him; and, if he would give it up, there would be a compromise: he came back, and said Templeton would give it up, brought the article, and Templeton said, if Hawthorn could sell to better advantage, he was agreed he should. I told Hawthorn I understood he considered the title bad, and said if it would not suit him, it would not me. Hawthorn told the situation the title was in; that it had been sold by the Orphans’ Court of Ohio, for the heirs; that it had been sold in this county two or three times for taxes; that Decamp had redeemed it as his land by assignment from the purchasers; that he thought all these titles put together it might make a good title; if a large improvement was put on it, it might sink the land. I asked Hawthorn why he did not take it, he said he could not pay; he was agreed that I should take it on that day. Mr. Foster came to Graham’s, where we were, and produced certain papers which showed that the heirs were not of age, and that one of them was but thirteen or fourteen years of age; after we examined the papers, Hawthorn asked me if I would take the land: he had before this urged me to take it. I told him I would not, he said perhaps I was as safe not to take it — Trout was there. Being cross-examined by the plaintiff, he stated, that
    The arrangement we were attempting to make was to paya debt Hawthorn owed me, and also a debt Decamp owed me; the bargain soon broke up after the age of the heirs was discovered. Decamp offered to give me security for the title. Haiothorn did not offer or speak of giving up his title in any other way than in that arrangement with me. Hawthorn did not say the title was good, or that he would risk it after he saw the age of the heirs. '
    It was admitted the plaintiff was to be considered as having paid one hundred and fifty dollars into court.
    The plaintiff requested the court to instruct the jury, 1st that if the defendant bought from Decamp with notice of the plaintiff’s claim, he could not object to the plaintiff’s recovery, for want of the purchase money being tendered to him.
    3. That if the defendant had a knowledge of such facts and circumstances respecting plaintiff’s claim to this land as might be sufficient to put a prudent man on inquiry, the defendant could not object to the plaintiff’s recovery in this case for want of notice. The court charged the jury as follows:
    In this case both parties claim under George Decamp by purchase from him; the defendant shows a legal title for this land by deed to himself and George Shilling, made and acknowledged on the 30th of January, 1834, and recorded on the 39th of September, 1824, and before this suit was commenced.
    The plaintiff claims by an article of agreement without deed and without legal title. It is true that cases arise where the court will permit a plaintiff to recover land on an article of agreement or even on a parol contract if complied with.
    The question to decide here is, is this such a case?
    
      Hawthorn, the plaintiff, had an article of agreement dated the 10th of October, 1818, whereon he paid one hundred and fifty dollars. On the 1st of April, 1819, a deed was to be made, and one hundred and ten dollars paid as simultaneous acts. But no act was done by Hawthorn, showing a disposition to carry on the purchase, no more money paid, no possession taken; but, on the contrary, avowing himself to have become embarrassed by trade, and too poor to go on with the purchase of the land; talking of throwing up his bargain for the land, and wishing another to take it. Thus it remained, when Bronson, the defendant, and Shilling, bought the same land from Decamp on the 30th of January, 1824, and got the deed. The defendant went into the woods to clear, build, and make improvements. The evidence is, that Bronson, in November, 1824, when this suit was brought, had two cabin houses, the end of a barn,-and about fifteen or twenty acres of cleared land, and had his deed recorded on the 29th of September, 1824, and after this Hawthorn brings his suit; after the legal title to the land had become vested in Bronson and Shilling. He tenders one hundred and ten dollars to Decamp, some time in September, 1824, but whether before or after Bronson’s deed was recorded, does not appear.
    The question for the court and jury, to decide is, does the plaintiff come into court with such a clear and pure equity that he is entitled to recover on his article against the legal title, possession and valuable improvements? We say he cannot recover the land, but should be turned to his action against Decamp, to recover back the money with such damages as he may be entitled to, unless the jury believe there was combination between Decamp and Bronson to cheat and defraud Hawthorn by the purchase; and this question of fraud is the chief fact for the jury to decide. The plaintiff’s counsel contend there was such combination and fraud, and that there was full notice to Bronson of Hawthorn’s right to the land. You ‘will judge of the evidence on this subject connected with the law on the subject of notice.
    1. If Hawthorn had got his article of agreement recorded, that would have been full notice.
    2. If he had taken possession and made improvements, that would be notice without recording the article.
    3. Or there may be actual notice of the subsisting right to the land; but this notice is not to be made out by mere implication from circumstances, nor from rumour or report, it must be made out by clear proof of actual notice. The clear notice required by law, is actual, has a real form, to be established by direct proof, by a person authorized to give such notice. The evidence on this subject, is the deposition of J. Cunningham, esq.: he does not undertake to say when that notice was given, whether when Bronson bought, or was about buying, or when about paying some money on his contract. And also the testimony of John Hawthorn, (here the judge read his testimony.)
    There is no proof of notice to Shilling. This question of notice and of fraud is for your decision, but there is so little proof of fraud in this case, that the court do not see which party is most chargeable with it; the charge may be as strongly retorted on the plaintiff. He talked of his being embarrassed and unable to go on with the purchase; pressed Haywood to buy; doubts being suggested to him as to title, he replies, that with all the titles together, a man that was able to go on and make improvements would make the title good. He lays back; makes no tender till Bronson lias improved the land, and this improved the title according to his notion, and now wishes to take it from him, thus improved and enhanced in value. He afterwards observed to Haywood, as to the title, “ May be you are as well without it;” and still contends as bis excuse that the title of Decamp was bad. If so, why does he want now to take the land with so bad a title? unless it is that he conceives even the title is improved by Bronson’s possession and improvements. The relinquishing the notion of holding the land on account of the badness of the title, and of the plaintiff’s inability to pay for it, is a different thing from a total relinquishment of the article with Decamp, and of the plaintiff’s rights under it. We think this attempt of the plaintiff, now to take the land, and improvements and improved title from Bronson without tendering a cent to him, has very little equity in it, unless you believe there was fraud or combination to cheat Hawthorn; in that case, there may be such an equity as to entitle the plaintiff to recover. There is no proof of notice to Shilling, who appeared (by the plaintiff’s own showing) to be a purchaser for a valuable consideration. Bronson had heard of Hawthorn’s contract, and had heard it was dead, and that he need not regard it. If you believe that Shilling and Bronson made their purchase under the idea and belief that Hawthorn had given up the intention of holding the land, and that there was nothing unfair in their conduct, then, as they had the legal title, Hawthorn should have tendered the money to them (Bronson and Shilling,) and not Decamp, and he cannot recover without such tender. It is material that the court know the plaintiff has another remedy and has taken a bond as security for it. If you should find for the defendant it does not preclude Hawthorn of his right to recover back the money he paid Decamp, and interest and damages if entitled to it for breach of the article. He has that remedy on the article, and a bond with Trout as security, which he may still pursue.
    To this charge the plaintiff excepted.
    The jury gave a verdict for the defendant, and judgment was l’endered accordingly.
    The following errors were now assigned:
    1. The receiving Jacob Trout as a competent witness.
    2. The court erred in charging the jury, “ The plaintiff could not recover the land, but should be turned to his action- against Decamp, to recover back the money with such damages as he may be entitled to, unless the jury believe there was combination between Decamp and Bronson,.to cheat and defraud Hawthorn by the purchase, and this question is the chief fact for the jury to decide.”
    3. In charging the jury, that notice “is not to be made out by mere implication from circumstances, nor from rumour nor report. It must be made out by clear proof of actual notice. The clear notice required by law is actual, has a real form to be established by direct proof by a person authorized to give such notice.”
    4. In charging the jury, “There is no proof of notice to Shilling.”
    
    
      5. In charging the jury, that “We .think this attempt of the plaintiff now tb take the land, and improvements, and improved title from Bronson, without tendering a cent to him, has very little equity in it, unless you believe there was fraud or combination to cheat Haiothorn, in that case there may be such an equity as to entitle the plaintiff to recover.”
    5. In charging the jury, “ If you believe that Bronson and Shelling made their purchase under the idea and belief that Hawthorn had given up the intention of holding the land, and that there was nothing unfair in their conduct then, as they had the legal title, Hawthorn should have tendered' the money to them (Bronson and Shelling,) and not to Decamp, and he cannot recover without such tender.”
    7. In charging, “ That it was material that the court knew the plaintiff had another remedy, and had taken a bond as security for it. If you should find for the defendant, it does not preclude Hawthorn of his right to recover back the money he paid Decamp, and interest, and damages, if entitled to it, for breach of the article.”
    8. The court did not answer the first question proposed by the plaintiff’s counsel.
    9. The court did not answer the second question proposed by the plaintiff’s counsel.
    
      Pearson, for the plaintiff in error.
    
      1st Error. — In receiving the testimony of Jacob Trout there was error. 11 Serg. & Rawle, 179.
    2. On this error he cited Newl. on Cont. 504, 510. 7 Atk. 275. 3 Ves. 478. 2 Fonbl. Eq. 151. 5 Serg. & Rawle, 261. A purchase with notice of an unregistered deed is fraudulent, and the first deed preferred. Jackson v. Burket, 10 Johns. 487.
    3. Charge, that notice must be given by a man authorized to give this notice. If one has notice, it is no matter how he received it. Notice to an agent, is notice to the principal. 9 Johns. 162.
    4. In the charge that there was no proof of notice to Shilling. Actual notice to any purchaser, is implied notice to the other. 4 Mass. Rep. 537.
    5. Charge, that the plaintiff had no equity, unless there was fraud and, combination to cheat him. We say the tender of the balance due from Hawthorn, might have been made either to Bronson or Decamp. Yost v. Martin, 3 Serg. & Rawle, 423.
    6. Charge, that if Bronson purchased, believing that the title was in Hawthorn, and had been guilty of no fraud, the tender of the balance due from Hawthorn, should have been made to Bronson, and not to Hawthorn. The belief of Bronson was nothing to the purpose. If he had notice, it was immaterial what he believed.
    7. We say, if Bronson purchased with notice, the plaintiff had a right to recover against him, and was not put to his remedy against Decamp on his bond
    
      S. The principle of this error has been spoken to before, in discussing the other errors.
    9. Not spoken to by Mr. Pearsost} ,. '
    
      Banks, for the plaintiff in error,
    cited the following cases: 1 Atk. 470, and 2 Binn. 501, on the subject notice. 4 Binn. 146, 147, 148. Per Yeates, J. I do not agree that notice must be given by the party interested.
    
      Foster, for the defendant in error.
    The plaintiff stands on an equitable claim. We contend that the plaintiff could not have obtained relief in equity; and, therefore, this charge was substantially right.
    
      1st Error. — Was Trout a competent witness? We say he was. If Trout had an interest in this cause, it was that the plaintiff should recover: then he offered to swear against his interest, in defeating the plaintiff. This verdict would be no evidence, in a suit by the plaintiff, against Decamp and Trout, on their bond. Before I speak to the errors assigned in the charge, I will read the evidence. (Mr. Foster then read the evidence from the record.) The plaintiff was to have paid Decamp one hundred' and thirty dollars in JLpril, 1819, which he never offered to pay till Septem~ ber, 1824. In September, 1824, T. S. Cunningham, agent for the plaintiff, tendered the balance due to Decamp, who refused to receive.it. The defendant purchased in January, 1824, and had made improvements in the mean time; viz. built a house and barn, and cleared twenty acres of land. - If one has trifled, or been backward in performing his part, equity will not give him a specific performance. 1 Fonbl. 391, If, on the whole evidence, the plaintiff was not entitled to recover, this court will not reverse the judgment for a small slip of the judge, even granting there was a slip, which I do not admit. When one purchases with notice of a prior agreement to sell, the law implies a fraudulent combination between him and the vendor, and this was what the judge meant, when he said there must be evidence of a fraudulent combination. In this case, there was no notice, actual or constructive. A binding notice, must be given by one interested in the land. The assertion of a stranger is not notice. Sugd. Vend. 490. Construetive notice: what is sufficient to put a prudent man on inquiry, is constructive notice. Ib. 492. It was a trick in the plaintiff to make a tender to Decamp, after he knew Decamp had conveyed to the defendant. 2 Fonbl. 151, note.
    Two of the errors assigned are, that the court gave no answer to certain questions. But it will appear that these questions were answered, in substance, in the course of the charge.
    
      Banks, in reply, for the plaintiff in error.
    
      1st Error. — Competency of Trout. He was incompetent, because called to prove that the plaintiff had relinquished the contract with Decamp, for the performance of which, by Decamps 
      
      Trout was bound in a bond to the plaintiff, as security for Decamp.
    
    
      Charge of the Court. — There was an essential error, in saying that unless there was a combination between Decamp and the defendant to cheat the plaintiff, he ought not to recover. This was a general position, which must have misled the jury; and it is not for this court to examine the evidence, and decide on which side the equity lies, or whether notice was proved. There was error, in saying that notice is not good, unless given by a person authorized to give it. Per Chief Justice: if notice is had in any way, it is sufficient. 5 Serg. & Rawle, 261. 2 Binn. 501. There was error in saying, that the not having given notice to Shilling would prevent the plaintiff’s recovery; because Shilling was no party to this suit. There was error, in saying that Bronson had no equity in an attempt to take the land from the defendant, without any compensation, unless the jury think there was combination between the defendant and Decamp: it ought to have been said, unless the defendant purchased with notice. In Yost v. Martin, Judge Gibson said, that in case the legal title is purchased with notice of an outstanding equity, the tender of what is due by the prior purchaser, may be made either to the vendor, or the holder of the legal estate who purchased with notice. The judge did not say, throughout his whole charge, that the plaintiff should recover, if the defendant purchased with notice. There was error, in leaving two-of our questions unanswered.
   The opinion of the court was delivered by

Duncan, J.

The equitable action of ejectment, in this state, forms a considerable branch of the law. From the nature of our original titles, settlement rights, warrants, and applications, all imperfect rights, so variant in their circumstances from other countries, our courts of justice have been obliged to form a system of laws adapted to this species,of title, and accommodated to all its circumstances, and whieh perhaps could not, 'after all our experience, be changed to advantage; and which, indeed, ought not to be changed, however specious the reason might be, as it would tend to destroy all security of title, and introduce new confusion, which nothing but a steady adherence to decisions can prevent. And when to-this is added, that in general the people contract by articles for payment by instalments, and the legal title seldom made until all the purchase money is paid, and the frequent assignment of these articles, we ought not to be surprised at the numerous complicated cases which arise in our courts of law and equity; for they are courts of law and equity distributing justice by the same medium— the instrumentality of a jury. In Pennsylvania, equity is law. Courts give the equitable principle to the jury, as they lay down the legal principles. The facts are for the decision of the jury, as all contested facts must be; but whether, on any state of facts found by the jury, the party is entitled to equity, and the mode, manner, and extent of relief, is for the court. If these principles were well understood and firmly acted upon* the tjtoe consumed in the trial of these vexatious causes would be, greatly shortened, and justice would be advanced. ■ ,.]y •'*N

The rules of equity are as binding as tfkSrules of law. Applying these rules to the case under consid'eratioájíiias there been any error committed on the trial of this cause, substantial error, which has injured the plaintiff? I think there has hot, and that the plaintiff has not shown a case entitling him to call on the defendant to surrender up his possession and improvements,' the labour of years, and the title for which he has paid his money, and that whatever remedy he may have is against Decamp.

In executory contracts, such as this, time is generally an important circumstance. A vendor is not obliged to keep his property unimproved and unproductive, until it pleases the vendee to proceed. There should be no culpable dilatoriness, no backwardness, no shifting off, on his part; there should be no waiting for the rise of the lands; no catching at improvements made by subsequent innocent purchasers, who, though they may have had some notice of the contract, yet, at the same time may be informed, and have good reason to conclude, that it has beén abandoned; given up, from inability to pay; from unwillingness to accept the title; in a country like this, where new land is plenty, and where all are in state of motion and emigration, one, after the lapse of years, would consider that the purchaser had suited himself with another place. If we had a regular Court of Chancery, proceedings by bill and answer, and, if a case like the present were brought before a Chancellor, he would without difficulty dismiss the bill, and leave the party to his remedy at law, to recover back the money from the vendor.

From the evidence, it would appear that from the time of the first payment, until after Bronson and Shilling’s purchase, payment of the money, deed, and valuable improvements, no movement was made by the plaintiff to complete the contract. He was desirous of getting rid of it; he was poor and embarrassed, and not able to pay for it, and did not like the title; and, it would seem his own opinion was that,the title, though defective, yet the owner might be improved out of it; and, when the improvements are in a state of forwardness, by Bronson, he steps forward, and says he will take the title, because Bronson has improved it, because the value of his improvements have sunk the land and improved the title.

I do not think it necessary to travel over the whole case in detail, or to answer the minute objections made to the charge of the court; because I am satisfied, that, on the hinge on which the cause turned, the charge of the court was correct and accurate; and embraced in one strong and impregnable position, the whole merits of the case. “ The question for the court and jury,” says the presiding judge, (and he could not have expressed it better,) is, Does the plaintiff come into court with such a clear and pure equity, that he is entitled to recover on his articles, against the legal title, possession, and improvements? We say he cannot recover the land, but should be turned to his action against Decamp, to recover back the money, with such damages as he may be entitled to, unless the jury believe there was a combination between Decamp and Bronson to cheat and defraud Hawthorn by the purchase; and this question of fraud is the chief fact for the jury to decide.” I cannot discover the scintilla of equity in favour of the plaintiff’s claim; it could not be, indeed, in a court of equity, that he, lying by as he did for years, not only lying by, but declaring his inability to complete the contract, the defect in the title, (the only cure for which, as he said, would be to improve the owner out of his land,) acknowledged by him, that he should, after the purchase by Bronson, payment of the purchase money, conveyance, and valuable improvements, pounce down upon him, and sweep all this away, even the very purchase money; for the tender to Decamp was nothing, the demand of the conveyance from him nothing, because Bronson was the notorious owner of the legal title with his deed on record; but, if he had tendered the money to him, and demanded the conveyance, I do not think that any court of equity would have compelled him to convey.

This disposes of the whole case on the merits. There is, however, the bill of exceptions to the reception of Trout as a witness, which remains to be disposed of. Trout was a competent witness for the defendant. What interest had he in the event of the trial? If he had any, it would be in favour of the plaintiff; for if the plaintiff recovered, then he would be discharged of his liability to Hawthorn. Decamp’s obligation would be complied with, and Hawthorn would have the title and the possession. But, if he did not recover in the ejectment, Decamp would continue responsible; so that it was clearly Trout’s interest to sustain the plaintiff’s action, and not to destroy it; because, by destroying it, it left him open to an action on the security for Decamp.

Judgment affirmed.  