
    [Lancaster,
    May 17, 1824.]
    MORRIS, for the use of the Executors of SMITH, and the Executors of BISHOP against BUCKLEY and others.
    in error.
    Where an amicable action of scire facias, upon a mortgage, is entered by the agreement of the parties, it is not error, that the cause has been tried, without writ, declaration or statement; particularly if the agreement contain a description of the mortgage.
    In a scire facias on a mortgage given to secure the purchase money of a tract of land, conveyed by the plaintiff to the defendant with general -warranty, the defendant, may, under the plea of payment, and notice of special matter, give in evidence the record of an ejectment brought by him under the plaintiff’s deed, against a third person, who was in possession of a part of the land at the time of the conveyance, by title adverse to the plaintiff, in which the verdict and judgment were against the plaintiff’s title ; notwithstanding the plaintiff had no notice of the ejectment. But the record is not conclusive evidence against the plaintiffi who, may show on the trial of the mortgage suit, the goodness of his title.
    If the plaintiff file of record a paper, declaring that no persons are interested in the mortgage, except those for whose use the suit is brought in his name, he cannot allege as error, that the cause was tried, without notice to certain other persons, to whom some of the bonds recited in the mortgage, appear to have been assigned.
    Where a plaintiff has issued a scire facias in the county of B. upon lands lying partly in that county, and partly in the county of C. the court will not, for that reason, reverse a judgment against him.
    If the defendant has shown under the plea of payment and notice of special matter, that the plaintiff had no title to the land he undertook to convey, this court will not reverse a judgment in favour of the defendant, because he has not tendered to the plaintiff a reconveyance of the land, the title to which has proved defective ; particularly if, on the argument in this court, the defendant engages to execute a reconveyance, provided the judgment be affirmed.
    On a writ of error issued to the Court of Common Pleas of Berks county, the record of this case was returned, together with a bill of exceptions, from which it appeared, that it was a scire facias on a mortgage given by the'defendants, to Benjamin Morris, of lands lying partly in Berks and partly in Chester county, to secure the payment of certain bonds mentioned in the mortgage. These bonds were given by the defendants to Benjamin Morris, on account of the purchase money of the mortgaged premises, which Morris had conveyed to the defendants by deed, with general warranty. It haying appeared, that four of the bonds recited in the mortgage had been assigned to George Emlen, and four others to Edward and Isaac Pennington, the plaintiff filed of record a paper, by which he stipulated, that the whole interest under the mortgage, including the bonds aforesaid, was in the executors of John Bishop and the executors of John Smith, and in no other person or persons. The action was commenced by an agreement of the parties, to enter an amicable action. No declaration or statement was filed, but the agreement contained a description of the mortgage. A rule of arbitration was taken out, which was afterwards stricken off; and the cause went to trial on the plea of payment, with leave to give the special matters in evidence; notice of which was given. In pursuance of this notice, the defendants, after having proved, that at the time of the purchase, part of the lands conveyed, was in the possession of Mathias Keller, and othex\s, who held by title advei’se to Morris, offered in evidénee, the record of an ejectment, which they had brought against them, in which, after a trial, there was-a verdict against the presexxt defendants, who claimed under Morris’s deed. The counsel for the plaintiff, objected to the x’c-cord being read ixi evidence, but the court admitted it, and an exception was taken to their opinion.'
    The plaintiff removed the record, by writ of, error, to this court, where Buchanan, for the plaintiff in erroi', contended,
    1. That the suit being bi’ought in the name of a nominal plaintiff fox; the use of the- executors of Smith and Bishop, who are not named in any part of the record, it cannot be sustained. (This exception he afterwards abandoned.) '■ ' ■ .
    2. That the cause having been tried without a scire facias, statement, or declaration, showing the cause of action, thei’e wasatrial without an'issue, which is ciTor. ' Wallace v. Elder, 5 Sere;. S¡- Rawle, 143. Lecky v. MiDermpt. Id. 331 .- Brown v.- Barnett, 2 Binn. 33. The agreement, containing a description of the mortgage, was confined to the arbitration, and was done away when the ease was brought again into court. When the rule was struck off by consent, each partywvas left to the usual mode of proceeding. The statutes of jeofails do not cure the waixt of a declaration, or any defect in substance. There is nothing on the record, from which the cause of action appears. Nothing to show, what land was mortgaged, or how much money was due, or when it was due; and there being nothing to amend by, these defects could not be amended. If the agreement be considered'as aprmcipe for a scire facias, it must be for all the lands included in the mortgage, as well for those which lie in Chester, as for those which lie in Berks county, and an issue on such a scire facias, would be erroneous. The act of assembly, directs the scire facias to issue in the county in/ which the land lies, and the judgment for the defendants, affects lands lying beyond the jurisdiction of the court.
    It was not altogether the fault of the plaintiff, that no scire facias or declaration was filed; for the defendants, might, if they had thought proper, have enforced it by rule. But if the omission be entirely imputable to the plaintiff, it does not prevent him from taking advantage of the ei’ror. 2 Craych, 126. 2 Bac. M. 490, 491. 2 Sound. 101. For the sake of the public, the court will require the record to show what was the matter decided.
    3. 'There was error in admitting in evidence, the record of the ejectment brought by the defendants against Keller. The deed from Morris to the defendants, contained a covenant of general warranty, upon which, they had a perfect remedy, and to that they should have resorted. This distinguishes the present case from that of Steinhauer v. Witman, 1 Serg. $? Rawlc, 34S, in which the warranty was special, upon which the defendant could not sustain an action founded upon a defect of title, and therefore he was permitted to give it in evidence, in a suit brought upon the mortgage. Hart v. Porter, 5 Serg. <§■ Rawle, 201, goes on the same principle, and the Chief Justice, at the close of his opinion, expressly confines such a defence to the case of a purchaser who has no covenants on which he can have recourse to the seller. There is no necessity of admitting such a defence in a case like this, in which there are covenants on which a perfect remedy may be had. Chancery will never interfere, where there is a remedy at law. There is no plea of set off in the present case; but if there were, the evidence offered, would not sustain it, because the damages are unliquidated. In the case of Stoddart v.' Smith, 5 Binn. 365, the estate had not been conveyed; the contract was not executed; and what fell from Judge Yeates, with respect to general warranty, was extra-judicial. To admit such evidence, would be productive of great inconvenience. It would convert the defendant into a plaintiff, and two causes, different in their natures, would be tried at the same time. By rejecting it, and putting the purchaser to his action on the warranty, he is kept under the controul of the court, who will not permit him to issue execution, until he has tendered a re-conveyance. But this controul is lost, by permitting him to defend upon an alleged defect of title. It would be no objection to-a recovery on the general warranty, that the defendants had not been evicted. Never having had the possession, they could not be evicted; but they had as perfect a right of action as if there had been an eviction, for the covenant of warranty is broken, if a third person has possession of the land, and holds by a better title, in consequence of which the purchaser cannot recover possession. This is equivalent to eviction. 4 Mass. Rep. 349.
    The record of the ejectment was not evidence for another reason. Neither Morris, Bishop, nor Smith had notice of it. No case can be found, in which a verdict and judgment to which the warrantor was not a party, have been admitted in evidence against him, to show an adverse title. The authorities are opposed to it. 1 Phill. Ev. 222, 227, 228. 3 Bl. Com. 300. 2 Bl. Com. 310, 311, 33S. 4 Mass. Rep. 349. 4 Dali. 436. Sugden, 315. 1 Foñb. 372. (note g.) But even if this record were admissible, under proper pleadings, it was clearly not so under the plea of payment with leave, &e. 2 Dali. 237. 1 Yeates, 573. 1 Cowp. 56.
    
    4. Notwithstanding it appeared that four of the -bonds recited in the mortgage had been assigned to Emlen, and four others to E. and I Pennington, yet the cause was tried without notice to them, and their rights have been decided upon in a suit to which they were strangers. To this point many of the observations made on the preceding one, and the authorities cited in support of them, apply.-
    5. The defendants ought to have tendered a reconveyance of the land lost by the ejectment. Bender v. Fromberger, 4 Ball. 436. By suffering the defendants to obtain redress by way of set-off, they are placed beyond the power of the court. They were not obliged to make the offer of a reconveyance, which was made during the argument; and besides, the ease must now be considered as it stood, when the court below entered judgment. It cannot now be made better than it then was. It is, moreover, the dffer of one only of the three parties to the original deed, and can be enforced against none of them; added to which, as Keller has now had adverse possession more than twenty-one years, which was not the case when the plea was put in, the land is completely lost by the act of limitations. -The proper time for such an offer was, when the notice of special matter was given, which should have been accompanied by a tender of a reconveyance. It has been suggested, that .when the discount was allowed, the defendants became trustees for the plaintiff. Admitting this to be so, it would be -very reasonable to compel the plaintiff to take an imperfect equitable title, which would ’ have imposed upon him great difficulty, in proving that the discount was allowed. The defence being an equitable one, the defendants should have done equity, by offering to reconvey.
    
      Baird and Hopkins, for the defendants in error.
    1. The suit was instituted in a very usual manner, by the agreement of the parties to enter an amicable action. This mode of commencing suits without writ, is not only a very common, but a very convenient practice. 3 Ball. 505. 2 Bl. Rep. 1269. In Massey v. Thomas, 6 Binn. 333,.this court decided, that an amicable action of ejectment might be entered, notwithstanding the act of assembly, giving the form of a writ, declared it should issue in that form and no other. If, however, a writ be necessary, it may be filed at any time; and this court will consider that as done, which was agreed to be done. 1 Wils. 303. 7 Johns. 470. 3 Bl. Com-. 406. 3 Serg. Sr liaiole, 402. 2 Serg. Sr Tiawle, 29. 1 Binn. 369, 370. 4 Yeates, 517. 1 Binn. 75. 4 Binn. 269. 6 Binn. 99. 1 Bac. Jib. 148. Cro. Car. 90. 1 Ball. 133. In a scire facias, for which the agreement was a substitute, neither a declaration nor a statement was necessary. Kean v. Franklin, 5 Serg. Sr Rawls, 147. But if it were, the agreement is a good statement under the act of 1806; for it contains a description of the mortgage,and gives all the information that can be required. But the objection comes with a bad grace' from the plaintiff. He seeks to reverse the judgment, because he has not done what he ought to have done; which can never be permitted. 5 Johns. 353. 8 Johns. '75. If a plaintiff, who has neglected to file a declaration, accepts a plea, and puts the cause at issue, and then the defendant obtains a rule for trial or non pros, the plaintiff cannot avail himself of the want of a declaration, in order to avoid the operation of the rule. Wenn v. Adams, 2 Dali 156. Still less shall the plaintiff be permitted to avail himself of the want of a scire facias or declaration, after he has expressly agreed to wave them. ,
    
      2. The defendants had a right, notwithstanding the general warranty, to show that the title to part of the lands had failed. The plea was, payment with leave, &c. which let them in to any equitable defence. Whatever shows that the bond ought not in equity to be paid, is evidence under the plea of payment. Hollingsworths. Ogle, 1 Dali. 257. Forty-ninthrule of the Supreme Court. Spar Jes s.G-arrigues, l Binn. 153. In an action brought to recover the purchase money, failure of title is always a good defence. This was fully established, in the case of a special warranty, by Steinhauer s. Witman, 1 Serg. &¡* Bawle, 442. This principle had previously been declared to be applicable to a case of general warranty, by Judge Yeates, in Smith s. Stoddart, 5 Binn. 365. So too it was held in 3 Bay, 76, 558; and even in England, while the contract remains on articles of agreement, defect of title may be "shown. 1 Fonb. 370. 31 Fin. 540. Sugden, 310. An action on the warranty would have afforded the defendants no redress; because there had been no breach, which would have entitled them to recover. A general warranty does not imply a covenant of seisin. 11 Johns. 122. 7 Johns. 358. And on the covenant of title, no suit would lie, until eviction. The defendants, never having been in possession, could not be evicted; and, consequently, could sustain no action upon the warranty.
    The want of notice of the ejectment to Morris, was no objection to its being given in evidence. In effect, he had notice; lie conveyed the title to the defendants without possession, which amounted to an authority to them to bring the ejectment; and in bringing it, the defendants may be considered as the agents of the plaintiff. But, admitting the total absence of notice, the record was evidence, though not conclusive; for the plaintiff might, on the trial below, have shown the goodness of the title. A verdict, though not between the parties, is evidence of a collateral fact. Leather s. Poultney, 4 Binn. 356. 1 Phill.'Ev. 338, 333. Vanhorn v. Frick, 3 Serg. fy Bawle, 278.
    
    3. The want of notice to Emlen and the Penningtons, is fully answered by a reference to the paper filed in the cause by the plaintiff, stipulating that all interest under the mortgage, was vested in the persons for whose use the suit was brought. Besides, the persons to whom the bonds were assigned, arenot before the court, and have made no complaint.
    
      4. In answer to the suggestion, that the defendants ought to have tendered to the plaintiff, a reconveyance of the land lost by the ejectment, we now' offer to reconvey, provided the judgment be affirmed. But this we are not bound to doj because, if the jury made an allowance for the failure of title, as to a part of the land-conveyed, the defendants, from the moment judgment was entered on the verdict, became trustees for the plaintiff; and would have reconveyed at any time, if he had submitted to the verdict, which he has always refused to do.
   The opinion of the court was delivered by

TiiGHMAN, C. J.

This is a sci. fa. on a mortgage given by the defendants to Benjamin Morris, for lands lying part in Berks, and part in Chester county, to recover the payment of certain bonds mentioned in the mortgage. These bonds were given by the defendants to B. Morris, on account of the purchase of the mortgaged premises, winch Morris had conveyed to the defendants by his deed with general warranty. At the time of the purchase and conveyance, part of the lands were in the possession of Mathias Keller, and others, who held by title adverse to Morris. Against these persons or some of them, the defendants brought an ejectment which was tried, and a verdict and a judgment given against them. The plaintiff in error has assigned six errors, the first of vvhich he abandoned.

2.- The second error is, that there is no sci. fa. statement, or declaration, showing the plaintiff’s cause of action.” The answer to this objection is, that the action was commenced, by agreement of the parties to enter an amicable action. It appears by the docket, that at Jamiary Term, 1S16, there was an entry of an amicable action of scire facias stir mortgage, which was referred to five arbitrators, after which the rule for arbitration was struck off by consent, and the cause brought to trial. ,-

The practice of entering an amicable action without writ, is very ancient in Pennsylvania, and very convenient. The issuing of the writ is dispensed with, but it is considered as having been issued, and may be filed at any time. The Court of Common Pleas would have given permission to file it, on application of the plaintiff’s or of the defendants’ counsel, and the not filing it, is one of those palpable omissions which this court has a right to supply. It may be considered as one of those clerical errors, which may always be amended, and which we may treat, as having been already amended. The agreement to enter the amicable action, contains a description of the mortgage, and both parties were'perfectly apprized of the -matter on which they went to trial. It was the business of the plaintiff to file the sci. fa. if he thought it necessary, and therefore, the complaint that it was not filed, comes with a very ill grace from his mouth. Then supposing the sci. fa. to be filed, there was no need of a declaration ; the cause of action being sufficiently described in the writ. It is the constant practice, to plead to the sci. fa. as was done in this case, without a declaration. Consequently the issue was well joined, and this exception falls to the ground.

3 The third exception is, “that the court below erred, in admitting in evidence, the record of the ejectment in Berks county, brought by the defendants against Mathias Keller.” This record was offered in evidence by the defendants under the plea of payment with leave, &c., notice having been given to the plaintiff of the special matter intended to be offered in evidence. The object of the evidence was, to show, that the consideration of the mortgage had failed, as to the price of so much of the lands conveyed by B. Morris to the defendants, as Morris had no title to. It is settled law, that if a failure of the title is discovered by the purchaser, before he has paid the purchase money, he is entitled to relief by a deduction from the purchase money, to the amount of the land which is lost. This was decided in Steinhauer v. Witman, one of the sti-ongest cases which can be conceived, where the purchaser had received a conveyance from the vendor with no more than a special warranty, and given his bond and mortgage for the purchase money (1 Serg. Rawle, 43S.) The plaintiff’s counsel have endeavoured to distinguish the present case from Steinhauer v. Witman, because there the purchaser was evicted by adverse title. There certainly is this difference, but the principle of the two cases is the same, viz. that the purchaser, being sued on the mortgage, is entitled to relief on account of the failure of title. In the present case, the defendants were under circumstances peculiarly difficult. Having never received possession from the vendor, it was impossible that they could be evicted. Then, what could they do? Was it not expected by the vendor, that an ejectment should be brought? Suppose the defendants had acquiesced in the possession of Keller, till time enough had elapsed to bar them by the act of limitations. Could they after that have recovered on their general warranty? Might not the vendor very justly have said, that the land was lost by their own fault, and therefore, he ought not to be responsible? But the plaintiff’s counsel say, that granting the defendants were right in bringing the ejectment against Keller, yet the record is not evidence, because the plaintiff received no notice of that suit, and therefore, lost the opportunity of showing that his title was good. To a certain extent this argument is sound, but not the extent contended for. If it be true, that the plaintiff received'no notice of the ejectment against Keller, he was not bound by the verdict and judgment in that case, but might" have proved, on the trial below, that his title was good. The record was evidence against him, but not conclusive. By being permitted to prove his title, in the present action, he had every advantage that he was entitled to. This principle was established, in Leather v. Poultney, 4 Binn. 356. The same principle prevails in actions on bonds of indemnity. Jl. gives to B. a bond of indemnity against the title of C. C. brings suit against B., and evicts him, after which B. brings an action against Jl. on the bond of indemnity. B. may give the eviction in evidence, whether Jl. had received notice of C’s. suit or not, but if he had not notice, he is permitted to show, that the title of C.. was not good, and Nought not to have been evicted. ,1 am therefore, of opinion, that the record of the ejectment against Kelhr, was good evidence.

4. The fourth error is, “that although it appeared in evidence, that four of the bonds secured by the mortgage on which this suit was brought, were assigned to George Emlen, and four others to Edward and Isaac Pennington, yet the cause was afterwards tried without, notice to them, and'their rights have been decided upon, in a suit, of- which they had no notice, and to which they were no parties.” This exception was very faintly urged by the counsel for the plaintiff in error, and certainly it did not deserve any great exertion-. It appears by the record, that in order to obviate this very objection, the plaintiff stipulated, before .the trial, “that the whole .interest under the mortgage, including the bonds assigned to Emlen, 8,'C. was in the executors of John Smith and John Bishop, and not in any other person or persons.” It would be strange indeed, if after this, the plaintiff should be permitted to make the objection now under -consideration. And as for Emlen and the other supposed assignees, they do not complain, nor have they ever complained of being injured. There is no weight,therefore, in this exception.

5. The fifth error is, “ that the mortgaged premises being part in the county of Chester, the trial in the county of Berks was a mis-triál.” Here again the plaintiff endeavours to avail himself of his own error, if any error there was in proceeding on the whole mortgage in the county of Berks. But how have the defendants been to blame? Suppose they might have pleaded in abatement, that part of the lands are'situate in Chester county, yet they were not bound to take this advantage. Their plea was payment, which went to the whole mortgage, in whatever county the action might be brought. On that issue there was no mistrial. If the plaintiff had obtained a verdict and judgment, and issued a levari facias, directed to the sheriff of Berks, to sell the land as well in Chester &s in Berks county, *perhaps he might have involved himself in difficulty. Neither w ill I say, whether there would not have been error in the judgment, if there had been an award of executors, by sale of the lands in both counties. The present judgment is clear of all these difficulties. The verdict was for the defendant on the issue of payment, and the judgment is, that they go without day, which is all right. I am, therefore, of opinion, that the fifth error has not been supported.

6. The last exception is, “that the defendants should have tendered a reconveyance of the lands to which they say JB. Morris had no title, before they could claim a deduction from the purchase money, under the plea of payment.” If, indeed, Morris had no title, it would have answered no purpose to execute a reconveyance. Or, if the plaintiff had been willing to make an allowance for defect of title, on receiving a reconveyance, there might have been something in this exception. But such is not the case. The defendants’ plea is an equitable one; that they ought not to be compelled to pay for lands, the title of which is defective. And they have offered and engaged to make a reconveyance, in case the judgment shall be affirmed. There is no danger, therefore, of the plaintiff suffering any injury for w mt of a reconveyance. But if strict law is insisted on, the defendants have made good their plea, by the verdict of the jury; and it is now to be supposed, that no title was conveyed to them, and therefore, there was nothing to reconvey.

It is the duty and the inclination of this court, to administer justice, with equity, as far as the law will permit. It does not appear, that on, or previous to the trial of this cause, the plaintiff showed any disposition to make an allowance to the défendants for the land lost in the ejectment against Keller, provided a reconveyance was executed. But it does appear, that the defendants have been willing, and are still willing to execute a reconveyance, on receiving such allowance. All the equity, therefore, is on the side of the defendants, and under all circumstances, I am of opinion, that there was no error in admitting the defendants’ evidence, although they had not tendered a reconveyance.

The judgment of the Court of Common Pleas is to be affirmed.

Judgment affirmed.  