
    FRYER VS. RISHEL AND WIFE.
    An assignment absolute on its face may be shown to be only intended as a collateral security.
    Error to Common Pleas of Clearfield County. No. 184 May Term, 1878.
    John Ehrgood made an agreement to sell his farm to Rishel for $1,400. Rishell was to pay Ehrgood $100 a year for seven years and was to maintain Ehrgood during the rest of his life for the other $700. In case Ehrgood died before he received all the annual payments Rishell was not bound to pay the balance. In pursuance of this agreement Ehrgood conveyed to Rishell and died two years afterwards. Two days after this agreement was made Rishell and wife agreed to sell two lots owned by Mrs. Rishell to H. Passmore for $700, of which $50 was in cash, $150 nine months afterwards, and the remainder in annual payments of $100 each. Rishell and wife assigned this agreement as follows : “For a valuable consideration, we do hereby assign all our right, title, interest and claim to the within article of agreement to John Ehrgood February the 8th, 1867, as witness our hands and seals.
    Witness: J. C. Barrett,
    B. C. Rishell, [l. s.] S. M. Rishell, [l. s.]
    An action of ejectment for unpaid purchase money was brought upon the article of agreement, but it -was paid into Court and a feigned issue was formed to try the title to the money between Fryer, the administrator of John Ehrgood, and the Rishells. On a former trial the judge ruled that the assignment not being duly executed was invalid and Fryer could not recover ; the Supreme Court, however, reversed the case on this point: 3rd Norris, 521. On the second trial the Court below left to the jury the question whether the assignment was intended as collateral security for the carrying out of the original agreement, or whether it was an absolute assignment altering the original agreement. The jury found it was a conditional assignment and rendered a verdict for the Rishells. Fryer then took a writ of err<J!r.
    
      Messrs. Wallace and Krebs for plaintiff in error.
    The Court had no right to submit the question of conditional assignment to the jury when there was no evidence: Howard Express Co. vs. Wile, 14 P. F. S. 29; Cunningham vs. Smith, 20 P. F. S. 450.
    The fund should have been awarded to the administrator ; and the Orphans’ Court should have distributed it to the parties legally entitled thereto: Linsenberger vs. Gourley, 6 P. F. S. 166; Ashford vs. Ewing, 1 Casey, 213; Kittera’s Estate, 5 Harris, 422.
    
      Messrs. McEnally and McCurdy, contra:
    The evidence shows that the Rishells kept Ehrgood during his life, thereby showing that both parties regarded the agreement as in force. The assignment is to Ehrgood, not to him and his heirs or assigns■ A deed may be turned into a mortgage by parol evidence or it may be inferred from circumstances: Rhines vs. Band, 5 Wright, 256; Plummer vs. Guthrie, 26 P. F. S. 441. Articles of agreement are not merged in a deed which is only a partial execution thereof: Brown vs. Moorehead, 8 S. & R. 569; Anderson vs. Long, 10 S. & R. 55; Niel vs. Thompson, 4 Watts, 405; Selden vs. Williams, 9 Watts, 9; Drinkervs. Beyers, 2 P. & W. 528. A merger only takes place where the debt is one and the parties to the security identical: Jones vs. Johnson, 3 W. & S. 276; Bennett vs. Caldwell, 20 P. F. S. 253.
   The decision of the lower Court was affirmed on June 10, 1878, in the following opinion:

Per Curiam.

The question in the Court below as to the absolute, or conditional purpose of the assignment as intended by the parties, was one purely of fact dependent upon the surrounding and attending circumstances as well as the face of the paper. We cannot say that the Court erred in the submission of this fact to the jury, or that there was anything in so doing in conflict with the former decision of this Court when the case was here before. We discover no substantial error in the assignment.

Judgment affirmed.  