
    Munger v. Casey et al.
    To convert a deed, absolute on its face, into a mortgage, by a parol defeasance, the evidence should be clear, precise and indubitable; and where it does not reach this standard, it is not error for the court to give binding instructions to the jury.
    The circumstances in this case were held insufficient to affect the pu/t'chaser ■of the legal title with notice of the parol defeasance.
    In equitable ejectment against the holder of the legal title, the plaintiff must prove payment or tender of payment of the amount due upon the legal title.
    During the trial, the plaintiff read an affidavit that material evidence had just been discovered, setting forth its nature, and asked for a short rule to take the testimony of the witness who was sick. The court refused, but it did not appear that any exception was taken. The court directed a verdict for the defendant. Held, not to be error.
    Feb. 25, 1889.
    Error, No. 55, Jan. T. 1889, to C. P. Lackawanna Co., to review a judgment on a verdict for defendants in an action of ejectment, by Phcebe O. Munger against Andrew J. Casey et al., heirs of Timothy Casey, deceased, at Nov. T. 1886, No. 98. Williams and McCollum, JJ., absent.
    The plaintiff claimed title to a certain lot of ground on Lackawanna avenue, in the city of Scranton, which was formerly owned by the Lackawanna Iron and Coal Co. She gave in evidence a contract of sale of said lot between that Company and D. P. Malvin and J. ■C. Phelps, dated Feb. 11, 1865 ; an assignment of that contract by Malvin and Phelps to John W. Munger, plaintiff’s husband, dated Feb. 14, 1865, and evidence that said Munger took possession and made improvements; a deed from plaintiffs, John W. Munger and wife, to I. S. Jones, dated Feb. 8, 1868, consideration $13,000; and a deed from I. S. Jones and wife to the plaintiff, dated March 13, 1869, consideration $3,000. The defendants then offered in evidence a deed from John W. Munger and Phcebe C. his wife to David P. Davis, dated Nov. 10, 1870, for the lot in question, reciting a consideration of $14,000; a deed from David P. Davis and wife to D. Howell, dated Jan. 6, 1872, consideration one dollar; a deed from Howell and wife to Philip Yerplank, Jr., dated Jan, 15, 1872, consideration $13,475 ; a deed from the Lackawanna Iron and Coal Co. to Philip Yerplank, Jr., dated Jan. 23, 1872, consideration $2,000, reciting the contract of sale to Malvin and Phelps, and its assignment to John W. Munger, then to David P. Davis, then to Howell, then to Yerplank; and a deed from Yerplank and wife to Timothy Casey, ■dated Nov. 5, 1882, consideration $20,000. The death of Timothy ■Casey was suggested on the record, after this action was'begun, and his heirs substituted as defendants.
    In rebuttal, the plaintiff endeavored to show that the conveyance to David P. Davis was in reality a mortgage, and that the defendants had notice of this fact. Davis’s attorney testified that, in 1871, he undertook to collect rent from Yerplank, who was in possession of part of the property, and that he told Yerplank at that time that Davis had taken the deed to hold the property until the rents repaid a loan to John W. Munger, and that Verplank replied that Davis’s title was not good.
    Davis was dead at the time of the trial, and the plaintiff offered in evidence his testimony before the master in an equity suit between the Mungers and Verplank. The court admitted the evidence upon condition that the plaintiff should put in all the testimony taken in that case. Davis’s testimony was to the effect that the conveyance to him was as security for a debt; that the consideration mentioned in the deed was not paid, but that he had loaned money to Munger before and after the conveyance and that the object was to enable him to collect the rents to repay himself. Davis’s testimony was further to the effect that his effort to collect the rents involved him in trouble with Verplank, who was in possession of part of the premises, and that, on this account, he conveyed to Howell, who paid nothing, but that he was to receive some money when Howell made something out of it.
    The other testimony in the equity case of Munger v. Verplank showed that Munger and wife made a contract of sale of the premises to Verplank Dec. 21, 1869. The purpose of the bill in equity was to have this contract delivered up and destroyed on account of a deficient acknowledgment, etc.
    The defendants then gave in evidence, under objection from the plaintiff, a certified copy of the record in the equity suit, “ for the purpose of showing the matter in controversy therein and the matters adjudicated therein.” This record showed that the plaintiff’s bill was dismissed Jan. 3,1881. The defendants then re-called Verplank, who testified that he carried out this contract of sale with the Mungers and paid the entire purchase-money, $13,750, to the trustee named in the contract, on May 28, 1872.
    An offer by the plaintiff to show that the contract with Verplank was invalid and conveyed no title, was refused by the court, on the ground that this question had been adjudicated in the equity suit.
    The court instructed the jury, inter alia, as follows, by Connolly, J.:
    [“Now, we say to you, gentlemen of the jury, as a matter of law, having listened patiently and attentively to all the testimony and the facts the plaintiff attempted to prove in this case, some things which they did prove which we allowed the defendants to rebut, we say to you as a matter of law, we cannot find sufficient facts in this case to warrant us in submitting to you the question of whether or not, at the time Munger and wife deeded this property to David It. Davis, there was a parol defeasance accompanying that deed.] [1] . . . [We instruct you as a matter of law that your verdict in this case must be for the defendants.”] [2]
    The verdict and judgment were for the defendants.
    During the trial, the plaintiff set forth, in an. affidavit, that she had discovered important evidence and that the witness was sick at his house and could not attend, and prayed the court for a rule, to issue forthwith, to take the witness’s testimony by the court stenographer. The court refused. On motion for a new trial, this evidence was taken and submitted to the court. It was to the effect that Timothy Oasey, previous to his purchase from Yerplank, came to the witness, who was a brother-in-law of the plaintiff, and asked him whether he thought that there would be any trouble with the plaintiff in regard to the title to this property; that the witness told Oasey that he had heard the plaintiff say she would fight the matter as long as she lived, etc.; and that the witness gave Oasey the address of the plaintiff, who was in Colorado at the time, and told him to write to her. A new trial was refused, and the plaintiff thereupon took this writ.
    
      The assignments of error specified, 1, 2, the portions of the charge in brackets, quoting them; and, 8, the action of the court in refusing to grant a short rule to take the newly discovered evidence during the trial, but without- quoting a bill of exceptions.
    
      Edmund G. Butler, with him E. H. House, for plaintiff in error.
    There was clear and explicit testimony that the deed to Davis was given and accepted as security for a loan, the amount of which was specified; the agreement was substantially contemporaneous with the execution and delivery of the deed. Plumer v. Guthrie, 76 Pa. 441.
    The evidence showed that the debt survived after the execution of the deed; and, where such is the understanding, the deed is but a mortgage. Todd v. Campbell, 32 Pa. 250.
    It has been held that, even where there is no express agreement that the assignment shall be held as security, the fact that no money or any part of the indebtedness was paid constitutes sufficient evidence to submit the question to the jury. Rhines v. Baird, 41 Pa. 256; McClurkan v. Thompson, 69 Pa. 305.
    The only question properly before the court was in regard to the parol defeasance, and this was the only question considered by the court. If the defendants had intended to rely upon the record of the equity suit, they ought to have pleaded res adjudicata, and produced that record as part of their case in chief. That record, as produced, was disjointed and separated, and not as a whole, and was introduced in part by one side and in part by the other. Exemplification of a record is not evidence unless certified as a whole. R. R. v. Quick, 68 Pa. 189.
    We excepted to the admission of this irrelevant evidence, but did not assign its admission as error because it was not relied upon, and the court did not use it in the final adjudication. Error cannot be assigned which has become immaterial in consequence of the result of the case. Bank v. Gruber, 26 Pitts. L. J. 97.
    Moreover, a point not made in the court below cannot be made here. Snevily v. Egle, 1 W. & S. 480; Wright v. Wood, 23 Pa. 120; Uplinger v. Bryan, 12 Pa. 219.
    No question arose as to tender of either the mortgage money and its interest or of any unpaid purchase money. Nor was any point made, either by the counsel for the defence or by the court, that any one in the chain of title did not have notice of the parol defeasance. It was shown that Verplank, who is admittedly the real defendant, had notice ; and the deposition of plaintiff’s brother-in-law shows that Casey inquired of liim in regard to the plaintiff’s claim before purchasing. This information was not obtained from a mere stranger.
    S. B. Price and Chas. H. Welles, with them Edward B. Sturges, for defendants in error.
    When Casey purchased, Verplank was in possession and his title was on record and could not be affected by a parol defeasance. Pancake v. Cauffman, 114 Pa. 113.
    There was no occasion for any inquiry. Leach v. Ansbacher, 55 Pa. 85.
    The bill in equity was dismissed in 1881; Casey purchased in 1883. Lis pendens cannot be notice, after a final decree. Adams’s Equity, notes, 324; Blake v. Hayward, 1 Bailey’s Eq. 208; Turner v. Crebill, 1 Ohio, 372; Worsley v. Scarborough, 3 Ark. 392.
    The granting of a rule to take testimony during the course of the trial was discretionary with the court and will not be reviewed. Moreover, the witness was a stranger and had no interest; mere rumors need not be inquired into. Jaques v. Weeks, 7 Watts, 261; Kerns v. Swope, 2 Watts, 75; Churcher v. Guernsey, 39 Pa. 84.
    But this evidence could not affect the result, for the contract with Verplank had been passed upon by the court and was res adjudicata. That contract contained the words “do hereby sell, assign and transfer,” and was a present conveyance. Krider v. Lafferty, 1 Wh. 303; Gray v. Packer, 4 W. & S. 17; Kenrick v. Smick, 7 W. & S. 41; Ogden v. Brown, 33 Pa. 247; Stewart v. Lang, 37 Pa. 201; Garver v. McNulty, 39 Pa. 473; Bortz v. Bortz, 48 Pa. 382.
    If that contract was not an absolute conveyance in law, it passed the whole estate of the Mungers in equity. Richter v. Selin, 8 S. & R. 439; Siter’s Ap., 26 Pa. 178; Robb v. Mann, 11 Pa. 304; Edwards v. Morgan, 100 Pa. 335.
    This is an equitable ejectment to enforce specific performance, and payment or tender of the purchase money ought, therefore, to have been shown. D’Arras v. Keyser, 26 Pa. 252; Edwards v. Morgan, 100 Pa. 335; Mitchell on Contracts for Sale of Land, 49.
    Upon the trial of an equitable ejectment, the court must weigh the evidence, and, if it is not sufficient to induce a chancellor to decree a conveyance, must give the jury binding instructions. Nicholls v. McDonald, 101 Pa. 514; Null v. Fries, 110 Pa. 522.
    Both the legal and equitable titles were transferred to Verplank; the estates of vendor, vendee and mortgagee merged in him. Mitchell on Contracts for Sale of Land. 40; Creigh v. Beelin, 1 W. & S. 83; Cronister v. Cronister, 1 W. & S. 443; Gregory v. Griffin, 1 Pa. 208; Dinsmore v. Biggert, 9 Pa. 133; Jones v. Wood, 16 Pa. 25; Cox v. Henry, 32 Pa. 18 ; Koons v. Hartman, 7 W. 20.
    
      March 11, 1889.
   Per Curiam,

There was some evidence that the deed from the plaintiff to David R. Davis was accompanied by a parol defeasance. It was not sufficient to have justified the jury in finding such fact; hence it was not error in the learned judge below to refuse to submit that question to them. The testimony to convert a deed, absolute on its face, into a mortgage, by a parol defeasance, should be clear, precise and indubitable. Pancake v. Cauffman, 114 Pa. 113. The testimony here does not measure up to this standard. There was no satisfactory evidence that brought home to Timothy Casey, the' ancestor of the defendants, any actual or constructive notice that the Davis deed was a mortfage. As we understand the case, the legal title by deed passed irectly to Philip Yerplanck, Jr., from the Lackawanna Iron & Coal Company. This action, therefore, is an equitable ejectment against the holder of the legal title, and the whole force of the plaintiff’s case was that her deed to Davis was but a mortgage, that is to say, a deed, absolute upon its face, with a parol defeasance. No proof was made of payment, or of tender of payment, on the Sart of the plaintiffs, of the amount due upon the legal title. [oreover, the defendants not only possess the legal title, but they also appear to have the equitable title, either by deed from Daniel Howell, dated Jan. 15, 1872; or by the contract with the plaintiff and her husband, dated Dec. 21, 1869, and which was fully paid up to plaintiff’s attorney on May 23, 1872. The equitable and legal title thus became vested in defendants’ ancestor, and there is nothing on this record to disturb it.

Judgment affirmed. H. J. L.  