
    Joseph Paxton v. Henry Harrier, with notice to Daniel Henninger, Terre-tenant.
    
    A mortgagee, who has released a vendee of the mortgagor for a valuable consideration, cannot recover against a prior vendee of the mortgagor, as between whom and the second vendee the land of the latter was primarily liable for the mortgage-money.
    Error to the Common Pleas of Columbia.
    
      July 11. Paxton, who was the plaintiff below, sold and conveyed to Harrier by deed of 5th May, 1882, a tract of 447 acres, and on the same day took from him a mortgage upon that land, to secure $1,100 of the purchase-money. The mortgage was recorded on the 30th of the same month. On the 1st June, 1832, Harrier sold to Daniel Henninger, the terre-tenant, a part of the land, by metes and bounds, containing, as was erroneously calculated by the surveyor, 11 acres 118 perches, at five dollars per acre, whereas, in fact, the marks and bounds included 26 acres. Owing to the mistake of the surveyor, Henninger paid only for 11 acres 118 perches, and held the remainder of the 26 acres, for which he paid nothing.
    The rest of the mortgaged premises was subsequently sold by Harrier to several purchasers, the last of whom was Christian Shuman. Erom each of these purchasers, Paxton received a part of the $1,100 of unpaid purchase-money, with interest, proportioned to the quantity of land bought by them severally; and, in consideration thereof, did release and discharge their several purchases from the lien of the mortgage of 5th May, 1832.
    The amount of mortgage-money due, to enforce the payment of which this scire facias was sued out, was what the 14 acres and odd perches, held by Henninger, above what he paid Harrier for, would amount to at $5 per acre, with interest from June 1st, 1832.
    Upon the trial, the offer of the plaintiff to prove that Henninger bought this land of Harrier, at so much per acre, and that the land included in Henninger’s deed contains 26 acres instead of 11 acres 118 perches, for the purpose of showing that Henninger is not such a purchaser for valuable consideration paid as to exonerate his land from paying the balance of the mortgage-money, was rejected, and its rejection excepted to.
    Anthony, President, charged the jury thus :—
    “ There are no facts in dispute between the parties in this case, and it therefore resolves itself into a question of law, whether the plaintiff is entitled to recover a verdict and judgment against Daniel Henninger, and we are of opinion that he is not; that, by releasing or discharging lands afterwards sold by Harrier, and being part of the mortgaged property, the mortgagee- also discharged the lands from the lien of the mortgage which were purchased by Henninger of Harrier, in June 1832. When Henninger bought his small lot in 1832, for about $60, Harrier had abundance left, included in the mortgage, to satisfy it. Afterwards, Harrier sold to different persons, and among others, to Christian Shuman, and released the purchasers from any liability to pay the balance of the mortgage-money, as set forth in the scire facias on the mortgage. These acts of Joseph Paxton prevented him from resorting to the land held by Daniel Henninger for the payment of the balance on his mortgage, and we therefore instruct you, that under the evidence in the cause your verdict ought to be for the defendant.”
    Verdict for the defendant.
    Pleasants, for plaintiff in error.
    The only question is, Is Daniel Henninger such a purchaser as should be protected from the lien of the mortgage for the balance due ? Does he come within the equitable principle decided in Cowden’s Estate, 1 Barr, 274; Nailor v. Stanley, 10 S. & E. 454; Stephens v. Cooper, 1 Johns. Ch. Rep. 425; Lyon v. Gill, Ib. 447 ; Clowes v. Dickinson, 5 Ib. 235; 5 Raw. 56; 4 Barr, 88. If not, then the court below erred in rejecting the plaintiff’s evidence, and in the whole charge.
    
      Mortgagee may release part of the land to purchasers, and the rest remain chargeable: Dunlop, 314, act 2d April, 1822, §1; Culp v. Fisher, 1 W. 494; 3 Raw. 139, 160, &c.
    The inverse' order of charging a lien upon an estate sold in parts, to different purchasers at different times, is a mere rule of equity. The release to subsequent purchasers, therefore, is not a technical discharge of land, previously conveyed, from the lien of the encumbrance. Neither is it an equitable release, unless upon principles of natural equity and justice: 8 Paige’s Ch. Rep. 284; 1 Ib. 228; 6 Ib. 35; 9 Ib. 173; 1 Hill Ch. Rep. 500. Where purchase-money has been paid in good faith, the first purchaser has prior equity: 2 P. 300 ; 5 Johns. Ch. Rep. 33; 9 Cowen, 403; 1 Sto. Eq. § 165, 156. 2 Sto. Eq. §§ 1219, 1220, 1225, 1228, 1232: In England, vendor has a lien for unpaid purchase-money, but not as against bond fide purchaser who has paid his money: 10 Ves. 511; 12 Ib. 6. If written agreement by mistake contains more or less than the parties intended, and the mistake is clearly proved, equity will correct it: 1 Sto. Eq. §§152, 153, 155; 7 W. & S. 203. If the difference between the real and represented quantity be very great, it will evidently be a mistake, which equity will correct, especially against one asking equity: 13 S. & R. 162; 14 S. & R. 299; 2 Wh. Dig. 635, pl. 78.
    
      Comly, contra.
    The land conveyed to Shuman was primarily liable for the whole mortgage-money, as between Henninger and Shuman, and if Henninger should be compelled to pay any part of the mortgage-money, he could recover it from Shuman: 10 S. & R. 450; 1 Barr, 274. Paxton’s release to Shuman necessarily released Henninger’s tract, otherwise Shuman would derive no benefit from it: Milliken v. Brown, 1 Rawle, 402; Taylor’s Executors v. Mann, 5 Rawle, 57. From these cases it follows that Shuman has an equity to have the land of Henninger exonerated, and this equity cannot certainly be affected by the alleged mistake in the number of acres conveyed by Harrier to Henninger, more than nine years prior to his deed to Shuman. Nor has Paxton anything to do with this mistake, if any was made. His rights cannot be affected by it. It is a matter entirely between Harrier and Henninger, and if Harrier ever had a right of action against Henninger for the price of the surplus of land conveyed, that right was barred by the statute of limitations, prior to the deed to Shuman or the release of Paxton; and Harrier cannot avoid the effect of the statute by raising Paxton as a plaintiff, or by subrogating himself to his mortgage: Fink v. Mahaffy, 8 W. 384; Bank of Pennsylvania v. Pontius, 10 W. 52; Rittenhouse v. Levering, 6 W. & S. 198.
   The opinion of this court was delivered by

Rogers, J.

This is an ingenious attempt to get rid of the act of limitations. The avowed object of the real plaintiff is to reach Henninger through the medium of Paxton, the mortgagee, so as to compel him to pay for an alleged mistake in calculating the contents of a small tract of land, part of the mortgaged premises sold by Harrier, the mortgagor, to Henninger; the' deed calling for 11 acres 118 perches, instead of 26 acres, the real quantity. If suit had been brought by Harrier against Henninger, which is the appropriate remedy to try the right, the question would arise, namely, whether the alleged mistake, after the consummation of the contract, by delivery of the deed and payment of the purchase-money, could be corrected, a question about which there could be but little difficulty, and second, whether the error, if any existed, could be remedied after the claim was barred by the act of limitation, a point more plain, if possible, than the former. These questions, which are insurmountable, the plaintiff seeks to evade under cover of a suit, in the name of the mortgagee. The attempt is to do by indirection what cannot be done directly. This the law will not tolerate. Besides, to allow Paxton to recover against Henninger would be a wrong to Shuman, whom Paxton, for a valuable consideration, has released. For, on the recovery against him, Henninger would have a remedy over against Shuman, who was a subsequent purchaser from Harrier, on the principle settled, in Nailor v. Stanly, .10 S. & R. 450, Cowden’s Estate, 1 Barr, 277-8, and other cases. The tract conveyed to Shuman was primarily liable for the mortgage-money, as between Henninger and Shuman, and if the former is compelled to pay any part of the mortgage-money, he can recover the amount from Shuman. In addition, even if successful, -it would be a lame victory, as Harrier cannot, by any possibility, receive any benefit from it. For, if Shuman is compelled to pay, Harrier must respond to him. Henninger, in the event of a recovery, may sustain suit, either against Shuman or Harrier. If the former, Harrier would be liable to Shuman; if the latter, to Henninger. The owners, in neither case, have any defence. Suppose Paxtourecovers against Henninger, and Henninger brings suit against Harrier; what defence would he have ? Certainly none, for unquestionably Henninger, the vendee, would have a prima facie case' against Harrier, the vendor, inasmuch as the land of the former had been taken to satisfy a mortgage which the latter was bound to pay. To meet this, he would be drawn to take the ground that there was a mistake in the quantity of the land; and this would raise precisely the question he seeks to avoid, namely, that the mistake, under the circumstances, cannot he corrected, and that the claim, if any at one time existed, is barred by the act of limitation.

Judgment affirmed.  