
    ASHTON’S APPEAL.
    Where a man has given his construction of a transaction in an •affidavit of defense, he is estopped from asserting a different construction afterwards.
    Appeals from Common Pleas of No. .1 of Philadelphia ■County. Nos. 82 and 83 of January Term, 1883.
    This was a case arising from the distribution of two funds which were produced by sales on first mortgages. The first mortgages were paid in full; and the funds were claimed by the Bolder of second mortgages; and also by the terre-tenant, the latter alleging that nothing was due on the second mortgage on account of usury.
    The opinion and decree of the Court making distribution was as follows:
    Per Curiam.
    The fund in court for distribution is the balance remaining after the payment of the two first mortgages, under which respectively the properties were sold.
    It is claimed by the holder of the second mortgages and his right to it is contested by the mortgagor and terre-tenant, who ■contend that there is nothing due on them.
    These mortgages amount to $31,000, and were originally given to Mr. Bell to secure present and future indebtedness of Dr. Ashton. The terre-tenant and mortgagor contend that they continued to be held for that purpose, and that it is necessary, therefore, to adjust the account between the mortgagor and mortgagee, and if nothing appears to be now due to Mr. Nell, the fund in court should be awarded to the terre-tenant.
    While Mr. Bell, the mortgagee, does not deny that the mortgages were given originally as security, he contends that on the 28th day of January, 1875, he had a settlement with Dr. Ashton and agreed to accept from him, in full payment of his •indebtedness to the amount of $19,500, these mortgages, and that the balance of the amount of $31,000, being $11,000, should be applied either to paying off the first mortgages or be held as security for other indebtedness of Dr. Ashton. That the fund now in court being only $12,555.57, is not sufficient to pay the actual purchase money of $19,500, and it is consequently immaterial to consider the state of the accounts over that sum.
    Mr. Bell supports his allegation by the production of the three following receipts:
    “Received, January 28th, 1875, from Thompson Bell, ten thousand dollars, on account of a certain mortgage for sixteen thousand dollars, executed and given by me to the said Bell dated September 29th, 1874, and recorded in Mortgage Book F T W, No. 93, page 49, etc.
    “SAMUEL K. ASHTON.
    “ January 88th, 1875.”
    
    “Received, January 28, 1875, from Thompson Bell, forty-fivshundred dollars, on account of a certain mortgage for ten thousand dollars, executed and given by me to the said Bell, dated September 29, A. D. 1874, and recorded in Mortgage Book. F T W, No. 193, page 60, etc.
    "SAMUEL K. ASHTON.”
    “Received, Philadelphia, January 28, 1875, of Thompson. Bell, five thousand dollars in the stock of the Commonwealth National Bank of Philadelphia, at par (being one hundred shares). Also my promisory ixote for five thousand dollars, due November 4, 1874, for which said stock was held as collateral security for the payment thereof, and which is in full consideration and payment of a certain bond and indenture of mortgage in the sum of five thousand dollars, given and: executed by me to said Thompson Bell, dated September 29, 1874, recorded in Mortgage Book F T W, No. 193, page 53,. etc., secured upon (here follows a description of the premises).
    “SAMUEL K. ASHTON.”
    There was no money paid on the passing of these receipts,, nor were the items of indebtedness constituting the consideration money, specified at that time. This, it is contended by Mr. Bell, was done in April, 1875, and a check was then given by Mr. Ashton for $22,854.70, being the amount of the value of fhe securities in excess of $19,500.
    To destroy, the effect of these receipts was, of course, the ■effort of the mortgagor, and a very large amount of testimony has been taken of the most conflicting character.
    The auditor has found from it, however, that the terre-tenant is entitled to the fund, and that the allegation of the mortgagee that he is a purchaser to the amount of $19,500 is untrue. In reaching this conclusion he appears to have entirely disregarded the items of testimony of the most conclusive character.
    It appears that in the Court of Common Pleas, No. 3, September Term, 1877, No. 698, Bell vs. Ashton, a suit was brought upon certain notes, and that on the 24th of November, 1877, Samuel Ashton, the mortgagor, filed an affidavit of defense in which he gives this account of the three mortgages in question.
    “On or about January 28, 1875, deponent made, executed and delivered to said plaintiff three several mortgages upon deponent’s real estate, in the Twenty-eighth ward, of the city, one of $5,000, one of $16,000,. and one of $10,000, in all $31,-•000, upon the following conditions and agreements then and there made by the plaintiff, to wit: That the plaintiff would
    accept such mortgages in satisfaction and payment of $19,500 ■of obligations held by him against deponent, and would surrender to said deponent said $19,500 of obligations.
    “The said Bell failed and refused to surrender but $8,030 of said obligations, and still does refuse, although bound as aforesaid to deliver same at and upon the execution of the said mortgages, which said mortgages the plaintiff accepted in full payment and satisfaction of the aforesaid $19,500 of obligations, including the ones now sued upon.
    “All of which deponent believes to be true, and expects to be •able to prove on the trial of this case.
    “SAMUEL K. ASPITON.
    
      “Sworn and subscribed before
    me this twenty,-fourth day of
    November, A. D. 1877.
    “[seal.] Thomas G. Dixon,
    
      “Notary Public
    
    Here, then, nearly two years after signing the receipts, the person who gave them swears that they are correct, and that the transaction precisely as described by Mr. Bell, the mortgagee, is true. He puts his defense on an entirely distinct ground, not that there was no sale, but that there was a sale, and he had not received the full amount of the consideration.
    In the whole of the great mass of testimony and argument we find no explanation or attempt at explanation of his affidavit, except a suggestion that in affidavits of defense the object is simply to prevent judgment and obtain an opportunity to be heard. An affidavit of defense, however, is not an artificial plea, filed for the purpose of raising issues of law or fact to be tried by a court or jury, but it should and does purport to state, under oath, the truth, and if it does not do so the person making it is liable to criminal prosecution.
    No one, therefore, can justly complain of being held to a statement thus formally and deliberately made in a court of justice, by which he has gained an advantage over his adversary.
    By Dr. Ashton’s own account, therefore, of this transaction, no subsequent arrangement altered in the slightest degree the original purchase made on the 28th of January, 1875. Mr. Bell swears that he did deliver all of the obligations, gives a list of them and produces a note for the balance not covered by the $19,500.
    Dr. Ashton admits he received on account of the purchase $8,030, and even if the other notes had not been surrendered they have never been satisfied in any other way, and suit on them is now barred by the statute of limitation. We think therefore, in this case, that the truth of Mr. Bell’s statement is made manifest by the receipts, affidavit of defense of Dr. Ash-ton, and that they should not be permitted to be obscured by the array of figures and contradictory statement which has been introduced into the case.
    In regard to the additional auditor’s fee, to which exceptions has. been made, we do not feel justified in awarding any larger amount than has already been received.
    The first, second and twenty-third exceptions are sustained and the report committed to the auditor for distribution accordingly.
    Harriet M. Ashton, the terre-tenant, then appealed.
    J. R. Booth and Crawford & Dallas, for appellant,
    argued that it was allowable to show the usurious interest paid in this-proceeding; Campbell vs. Sloan, 62 Pa., 481;. The auditor’sfindmgs were in favor of appellant; Mengas’ Appeal, 19 Pa., 221; Whiteside’s Appeal, 23 Pa., 114; Yohe’s Appeal, 55 Pa., 122; Speakman’s Appeal, 71 Pa., 25. There has been no judgment on the mortgage, and appellant is not stopped from setting up the usury; Parker vs. Sulouff, 94 Pa., 527.
    
      Messrs. T. A. Gummey, D. W. Sellers and George Junkin Esqs., for the Western Savings Bank, appellee,
    argued that theterre-tenant cannot set up the defense of usury paid upon the notes; Lennig’s Appeal, 93 Pa., 301. The auditor had no-power to settle a general account between Bell and Ashton.
   The Supreme Court affirmed the decrees on February 12th, 1883, in the following opinion:

Per Curiam.

These funds were produced by sheriff’s sale on judgments obtained on mortgages. The auditor and Court differ in their conclusions as to the sums due thereon. The evidence-is voluminous, but all trends toward the ascertainment of the one fa.ct. The opinion of the Court appears to be fortified by clear, express, and controlling evidence. Parole and written evidence, as well as the previous affidavit of the main witness-of the appellant, all concur in proving the correctness of the conclusion at which the Court arrived, and justify the decrees.

Decrees affirmed and appeals dismissed at the cost of the appellant in each case.  