
    [Pittsburg,
    September, 1828.)
    SHARPLESS against TATE.
    IN ERROR.
    On the plea and issue of non damnificatus, in a suit on a mortgage given to se-cure to the plaintiff the future conveyance by certain heirs to him, the plain- ■ tiff cannot give in evidence, tó show the amount of damages he sustained, that ' he had, since the suit, purchased of the heirs, and the conveyance from them to him.
    Writ of error to the Court of Common Pleas of Fayette county, ' :
    
   The opinion of the court was delivered by

Huston, J

— On the 25th of March, 1809, Isaac Hill and wife conveyed twenty-eight acres of land on the north side of Bedstone creek to Jonathan Hill and John Tate, in consideration of fifteen hundred dollars! On the 20th of January, 1810, Jonathan Hill and John Tate conveyed the same to Jonathan Sharpless, in consideration of fifteen hundred dollars. On the 4th of September, 1799, the will of John Tate the elder was made, and proved in December, 1799, devising a life estate in certain lands.to his son Robert, and the fee to his children, and making his widow, Rachel, and S. Jackson, executors. On the 21st of February, 1809, Rachel Tate sells to Jonathan Sharpless one hundred and twenty-eight acres on the south side of Redstone, patented to Robert Tate in 1784, and for which she had a sheriff’s deed, but does not say whose title was sold; but it was sold as Robert’s. On the same day, on the 21st of February, 1809, Rachel, John, and Robert Tate gave a bond in eight thousand dollars to Jonathan Sharpless, reciting the will and deed ábove-mentioned; and conditioned that the heirs of the said Robert Tate, shall, with himself, as they severally come of agé, make over all their fight, claim, and. demand, &c. in the premises to Jonathan Sharpless. On the same day John gives a mortgage on the half of one hundred and fifty acres, called Tateston, to Jonathan Sharpless to secure the payment of the said bond. On the 17th of April, 1.827, John Tate and Edward Tate (the sons of Robert,) reciting all the titles and will; and, that they are the children of Robert, to whom this land was devised, sell to Jonathan Sharpless for fifteen hundred dollars and ten cents.

Jonathan^Sharpless'i No< 273> of October Térm, 1822. John Tate. ) Scire Facias 011 mortgage.

This is the mortgage above recited. On the 2d of September, 1823, John Tate confessed a judgment, by writing filed, for six thousand dollars. On the 15th of August, 1826, the judgment was opened to permit Jonathan Hill, who had purchased the mortgaged- premises at sheriff’s salé as John Tate’s land, to make defence, and the cause was put to issue on the pleas of payment with leave, &c., •and non damnificatus; to which a special replication was made, stating, that 'Sharpless had been obliged to purchase the land from the heirs .of Robert Tate, &c., arid issues on all.-

On the trial of these issues, the plaintiff, after giving in evidence the above deeds, offered to show the amount for which the land sold at public salej since the bringing this suit, in order to show the value of the land sold by Rachel Tate to Jonathan Sharpless, to secure which this mortgage was given; at which sale Jonathan Sharpless was the highest bidder and purchaser. This was object-ed.to, and rejected, and an exception was taken. This was the. first error assigned.

The plaintiff then proved, by John Tate, that at the execution of the mortgage, Jonathan Hill knew thé object for which the plaintiff purchased the land on the south side of the creek from Rachel Tate, and that he intended to erect valuable water-works, and offered the same evidence again as in the former bill of exceptions, accompanying it with the offer of the deed from John and Edward Tate, th.e children of Robert, to show the sum he was obliged to give for the land, and thus determine the quantum of damagés. This was again rejected; and forms the second bill of exceptions. There was no error in rejecting this testimony. I do not say,.that in no. case, on the trial of an issue of non damnificatus, can. the plaintiff give evidence of what occurs after suit brought; nor do I say that, in any case, he can. It is not necessary to decide that matter in this, cause: nor, do I decide, that where a man situated as. Sharpless in this case was, buys in the adverse title to save himself, after making improvements, which he is in danger of losing; his own acts can in • no casé be given in evidence. Nothing is decided on the general'question: but, in this casé, after suit brought, and issue joined on the plea-of non damnificatus, the plaintiff went and purchased the land, and offered that purchase, and the deed which evidenced it, to support an issue joined in a suit brought some years before; and not only to prove that he had suffered damage, but also to prove how much. The court very propérly rejected this evidence. ' •

Judgment affirmed.  