
    [Lancaster,
    May 29,1827.]
    M'MULLEN, for the use of RUDY and Wife, against WENNER and another.
    IN ERROR.
    A judgment obtained against the vendor of land, after the execution of an article of agreement, but before the execution of a deed, binds the legal estate of the vendor; and, on a sale under such judgment, the sheriff’s vendee stands precisely in the situation of the original vendor, and is entitled to the unpaid purchase money, payment of which he may enforce by ejectment against the terre-tenant
    If the assignee of a bond is induced to purchase it in consequence of representations made by the obligor, that he has no defence, and is willing to pay it, the obligor cannot set up against the assignee any equity, of which he might have availed himself against the obligee, even though such communications were not made directly to the assignee or to his agent, but merely communicated to another, in his presence and hearing.
    The record of this case being returned on a writ of error to Lebanon county, accompanied by several bills of exceptions both to evidence and the opinion of the court, it appeared, that in the court below it was an action of debt, brought by the plaintiffs in error against the defendants in error, upon a bond dated April 15th, 1815, conditioned for the payment of one hundred and thirty-seven dollars and fifty cents, on the 22d of April, 1819, given by Jacob and Daniel Wenner to Daniel M'Mullen, by whom it was assigned on the 3d of February, 1816, to Ann Fox, who subsequently became the wife of John Rudy.
    
    The defendants gave notice that under the plea of payment, with leave to give the special matter in evidence, they should prove that the bond on which the suit was brought was one of several bonds given by the defendants to Daniel M‘Mullen, in consideration of a tract of land in Dauphin county: That previous to the date of the said bond an article of agreement was executed between Daniel M'Mullen and Daniel and John Wenner, dated October 18th, 1814, by which M‘Mullen covenanted and agreed to convey the said land free of all incumbrances, and by deed dated the 15th of April, 1815, the said M'Mullen conveyed the said tract of land, and covenanted to defend the grantees against all claims whatsoever: That at the time of executing the said deed there was a judgment binding the said land in favour of Samuel Ensmenger for one thousand dollars, entered in the Court of Common Pleas of Dauphin county, under which the land had since been sold by the sheriff of that county. The notice contained other matters not now material.
    Under this notice, the defendants, among other things, offered in evidence the article of agreement to which the notice referred, the record of a judgment in a suit brought by Samuel Ensminger 
      against Daniel M‘Mullen in the Court of Common Pleas of Dauphin county to December Term, 1814; to both which the counsel for the plaintiff objected; but the court overruled the objection, and admitted the evidence, and sealed bills of exception.
    After the defendants had closed their case, the plaintiff proved that Daniel M'Mullen went to the house of old Mr. Fox, the father of Ann Fox, and offered the bond for sale. M'Mullen, accompanied by Henry Fox, the son of the old gentleman, called on Jacob Wenner, and told him he had found a pjace to sell bonds. He took the bond in question, with others, out of his pocket, and laid them on the table. Wenner took them up, looked at them, and said, “ Yes, they are my bonds, and I am willing to pay them at any time; but I have not got the money now.” M'Mullen asked him if he was willing the old man should buy them. Wenner said, “Yes; it will be better for me if you sell them hereabouts; then I can pay them easier than go to Halifax to pay them.” M‘Mullen then told Wenner that it was for this old Fox had sent his son along with him; that he did not trust to him. M'Mullen then asked Wenner again if he was satisfied, when he said, “Yes, I would rather have it so than not.” This conversation was communicated to old Mr. Fox in the presence of his daughter Ann, and she afterwards purchased the bond on which the suit was brought, and took an assignment of it.
    Several points of law were, at the conclusion of the trial, submitted to the plaintiiPs counsel to the court for their opinion; on all of which the charge was in favour of the plaintiffs, except the, following, viz.
    “That it was the duty of Jacob Werner, the obligor in this bond, when called upon, to tell Mr. Fox, the brother of Ann Fox, that he had an objection to this bond, and that he would not pay it when it became due, because Fox was sent there for the express purpose tc^know whether the bond was good or not: he told Jacob Wenner so. And as Jacob did then say that this bond was good, and would be paid whenever he had money, that he cannot now gainsay it, but must pay the bond, although the consideration for which the bond was given has since failed.”
    The charge of the court was in these words, viz.
    “The promise to pay made by Jacob Wenner, in the presence of Henry Fox’s agent, would bind him to pay the bond, if it had been assigned to Henry Aba:; but this promise would not bind him to pay a bond assigned not to Henry Fox but to a third person to whom or to whose agent no promise was made, and who was not present when he made such engagement or promise to Henry Fox’s agent. Ann Fox cannot take advantage of this: young Fox was not sent by her to Jacob Wennerf he was not her agent, and she was not present when Wenner made the promise; and, however binding the declaration of Jacob Wenner would be as regards Henry Fox, they will not bind him as to Ann Fox, whose duty- it was to ascertain before the assignment, either personally or by an agent, whether Jacob Wenner would make defence against the payment of the bond or not, and to her bond he can set up his defence, for she is in the same situation in this suit as the assignor, M'Mullen, would be, were he the plaintiff. And there is not a tittle of evidence given to show that she intended to purchase this bond before Henry Fox called on Wenner and conversed with him on the subject of the bonds, or that she sent him, there, or had any thing to do with his going there.”
    The counsel for the plaintiff excepted to the charge.
    
      Weidman and Foster, for the plaintiff in error.
    
      Norris and Elder, for the defendants in error.
   The opinion of the court was delivered by

Rogers, J.

This was a suit brought to recover the sum of one-hundred and thirty-one dollars, fifty cents, on a bond given to secure part of the purchase money of a tract of land sold by the defendants, to Daniel M'Mullen, and assigned by him for a valuable consideration to the plaintiff, Ann Fox, since intermarried with John Rudy.

There is no doubt, that the assignee of a bond, whether the assignment be legal or equitable, takes it at his own peril, subject to every defalcation which might have been made against the obligee by the obligor, at the time of the assignment, or notice of it. 1 Dall. 23. 2 Dall. 49. 4 Serg. &. Rawle, 177. The defence relied on, was, that the bond, on which suit was brought, was given to secure the payment of the purchase money of a tract of land sold by Daniel M'Mullen to Daniel and John Wenner:. That subsequent to the articles of agreement, but before the execution of the deed, Samuel Ensminger obtained a judgment against Daniel M'Mullen, to wit, to the December Term, 1814, No. 44. The first question raised by the plaintiffs in erro», is, what is the legal effect of this judgment? and about t ús we have no difficulty. It binds the legal estate of Daniel M'Mullen in the land, which was not parted with at the time of the rendition of the judgment. The sheriff’s vendee would stand precisely in the situation of M‘Mullen, and therefore it is incumbent on a purchaser to search the office for judgments, before payment of his money, up to the time of the execution of his deed. The sheriff’s vendee would be entitled to the unpaid purchase money; the payment of which he could enforce, by an action of ejectment against the terre-tenant of the land. The sale of the legal estate by a judgment mesne between the articles of agreement and the execution of the deed would transfer, as a necessary incident, the money remaining unpaid. And in this there is no hardship upon the original vendee, as he has notice upon record, and can have no difficulty in protecting himself, if he uses ordinary diligence.

In an action of ejectment brought by the vendee of the sheriff, the original vendee, could protect himself only, by payment or tendering the purchase money, unpaid at the time of the rendition of the judgment; on doing so, he would be entitled to a conveyance of the legal title vested in the sheriff’s vendee.

In the case of the sale of an equitable interest in lands, it has already been decided, that the vendee of the sheriff stands in the same situation as the former owner of the equitable interest. In Auwater v. Mathiott, 9 Serg. & Rawle, 397, it has been held that the judgment creditors of a vendee of land, who has paid part of the purchase money, and has possession of the land, but has received no deed, are entitled to the proceeds of sale of his title under an execution, in preference to the vendor.

By the law of Pennsylvania, all the real estate of the debtor, whether legal or equitable, is bound by a judgment against him, and may be taken in execution and sold for the satisfaction of the debt. At common law, an equitable estate is not bound by a judgment, or subject to an execution. We have no Court of Chancery, and have, therefore, from necessity, established it as a principle, that both judgment and execution have an immediate operation on equitable estates. 9 Serg. & Rawle, 397.

If then a judgment binds an equitable interest in lands, a fortiori, it binds a legal interest, and to the extent of the interest at the time of the judgment.

Although prima facie, the obligor may make every defence against the assignee, which at the time of the assignment, or notice of it, he could have made against the obligee, yet he may by his own conduct, preclude himself from the benefit of that right. Thus it has been held that if the assignee calls on the obligor, and informs him he is about to take an assignment of his bond, and the obligor acknowledges that it is due, without any allegation of defence, he shall not be permitted to take defence against the assignee. And this whether his silence proceeds from ignorance or design. It would be most inequitable and unjust, that he should;, because if any loss afterwards occur, it arises from the negligence or folly of the obligor, and not the default of the assignee, who has taken every pains to inform himself of the real situation of the parties. If any injury accrues, it is right that he who causes it should bear the loss. The cases all go upon the ground that the assignee has acted with good faith, and without notice of any defect of title, or valid defence, and with a wish not to ensnare the obligor, but to protect himself. As bonds are an article of commerce, and are made transferable, equitably and expressly by an act of assembly, it would be legalising fraud to hold any other doctrine. It appears, that Daniel M‘Mullen came to the house of old Mr. Fox, offered to sell this bond, that Henry Fox with Daniel M'Mullen ealled on Jacob Wenner, and told. him. that he had found out a place to sell the bonds. That M'Mullen took the bonds out of his pocket, and laid them on the table, and that Wenner took them up and looked at them and said, “ Yes, they are my bonds, and I am willing to pay them at any time, but I have not got the money now.” M‘Mullen then asked him if he was willing old Fox should buy them. Wenner said, “Yes, it will be better for me, if you sell them hereabouts; then I can pay them easier than go to Halifax to pay them.” M‘Mullen then told Wenner that it was for this that old Fox had sent his son along with him; that he did not trust to him. M'Mullen then asked Wenner again if he was satisfied. He said, “ Yes, I would rather have it so than not.” That this conversation was communicated to old Fox in the presence of Ann Fox, and that Ann Fox purchased the bond and took the assignment on which this suit was brought.

It was not, it is true, Ann Fox who called on Wenner, nor was Henry Fox her agent; but this can make no difference in the principle. The question is, was Ann Fox induced to purchase the bond under the representation made by Wenner, which w'as communicated to her, that he had no defence, and that he was willing and desirous that the bond should be sold in the neighbourhood. If this should be the opinion of the jury, who are the proper judges of the fact, and that there was no imposition on Wenner in which she was concerned, then every principle of law, and of common sense, would say, that Wenner, and not Ann Fox, should sustain the loss if any arises. In such a case, the verdict of the jury should he in favour of the plaintiff to the amount due upon the bond.

Judgment reversed, and a venire facias de novo awarded.  