
    Levick et al. v. Bensing.
    In an action of ejectment, the plaintiff attempted to prove that a deed, absolute on its face, was really a mortgage. The evidence failed to show what amount was specified, for which the deed was to stand as security, and within what time the loan was to be repaid and there was no evidence that any amount had ever been repaid. The defendant in the ejectment was a bona fide purchaser for value without notice of the claim that the deed was a defeasable conveyance. Meld, that the court committed no error in giving binding instructions for the •defendant.
    Feb. 18, 1889.
    Error, No. 7, July T. 1887, to review a judgment on a verdict in an action of ejectment by Howard E. Levick and William H. Gardner, trading as Eichard Levick’s Son & Co., against John Bensing, at Aug. T. 1885, No. 272. Sterrett and Mitchell, JJ., absent.
    The evidence was to the following effect, at the trial before McPherson, J.:
    On Jan. 6, 1877, P. F. McCauley executed a deed granting the property in suit to Philip Fisher, his uncle. Fisher died on May 14, 1882, and his executors, on March 3, 1883, sold and conveyed the premises to John Bensing, who thereupon took possession. On February 25, 1884, the plaintiffs obtained a judgment against P. F. McCauley, and levied upon the premises as the property of McCauley. They were subsequently sold by the sheriff to the plaintiffs and a sheriff’s deed made therefor. The plaintiffs claimed that the deed to Fisher, although absolute on its face, was really a mortgage. McCauley was called for the plaintiffs and testified that he did not receive a dollar as consideration for the deed. “ Q. Why, then, if you didn’t receive any money for this deed, did you execute it? A. Well, Mr. Fisher called at my store. I had asked him a day or two before for some endorsement on paper. When he came in the store in the morning he said if I would give him a deed for the property as collateral, the same as a mortgage, why, he would continue on endorsing for me. Q. Was it with that understanding and under that agreement that you executed this deed? A. Yes, sir; he said he would hold that; I think he used the words ‘ in trust ’ for me as collateral; that was the transaction between us. Q. Then, as I understand, it wasn’t to be considered as an absolute conveyance ? A. No, sir; never that way. I always held it and paid the taxes and paid no rents to him; it was always taxed in my name; I made the improvements that were made.”
    A. S. Ulrich, an attorney who acted for Fisher at the time the deed was executed, testified that he instructed the notary, who took the acknowledgment, to tell Mrs. McCauley that the deed was only to secure past, present and future indebtedness; that McCauley owed him, Fisher, money, and it was to secure this money that the deed was given.
    Mrs. McCauley testified that the notary told her that “Mr. Fisher just wanted to have security.”
    There was incidentally some evidence that McCauley had brought a bill in equity against the executors of Philip Fisher, but the record was not offered in evidence.
    The court charged as follows:
    “ The effort here is to prove a deed, absolute on its face, to be a mortgage. Without passing upon the competency of Philip McCauley and his wife, — we assume them, for the present, to be competent,— [it is enough to say that the evidence, in the judgment of the court, falls very far short of the requirements wisely established by the supreme court] before such a result can be accomplished. [It is only necessary to state, that no amount is specified for which the deed was to stand as security; no time of repayment is mentioned, neither is there a particle of evidence in the case to show that any amount has ever been repaid.] [We therefore instruct you to find a verdict in favor of the defendant.”]
    Yerdict and judgment for defendant.
    The opinion of the court discharging a rule for a new trial, is here given, as it contains a fuller discussion of the case :
    “ There are two questions in this case which we do not think it necessary to consider, the competency of Philip McCauley and his wife as witnesses, and whether, as between themselves and Philip Fisher, the deed of Jan. 6, 1877, was a mortgage. We assume the competency of the witnesses, and also the existence of a parol defeasance, of some kind, sufficient, as between the parties, to turn the deed into a mortgage. There are still two objections, however, in the plaintiffs’ road, either of which is fatal to their case.
    “The first is, that the defendant appears to be a bona fide purchaser for value without notice. The plaintiffs offered, indeed, to show notice, but they did not do so. No evidence of actual notice was given, and we see none of that constructive notice which arises from possession by the mortgagor. No witness speaks of McCauley as living in the house, and the evidence about -his payment of taxes for 1881 and 1882, and about Fisher’s declarations, bears upon ownership and not upon possession. Unless his actual possession at the time of Bensing’s purchase is to be presumed — and we do not feel inclined to presume it, when the fact could have been proved by several witnesses, among whom was McCauley himself — nothing was shown to affect Bensing with notice of the parol defeasance, and therefore the prima facies of his own deed must prevail.
    “ The second objection is this. Assuming that Bensing had notice, the action would then be an equitable ejectment brought by the sheriff’s vendee of the mortgagor against the vendee with notice from the mortgagee. The general rule in such case is, that the plaintiff must prove that the mortgage has in some way been paid, or that a tender of the sum dne has been made before suit, following his tender by paying the money into court for the defendant’s benefit. Gore v. Kinney, 10 Watts, 139; Bell v. Clark, 111 Pa. 94; McGrew v. Foster, 113 Pa. 646. binder some circumstances, a conditional verdict may be framed (Mellon v. Lemon, 111 Pa. 56), finding what is still due to a mortgagee in possession and thus enabling the mortgagor to obtain the premises without unnecessary delay. In the case before us, however, there was no allegation of payment or of tender, and such scanty testimony about the whole transaction that a conditional verdict would have been little better than a guess. As already stated, it did not appear who had been in possession up to the date of the deed to Bensing, and the testimony equally fails -to show the rental value of the property, the sum for which the mortgage was given, the sum which was actually advanced upon its ■security, and the time and terms of payment. We could not leave all this to the jury to be found without proof.
    “It was urged, however, that the deed and parol defeasance were together an unrecorded mortgage, and were therefore discharged by the sheriff’s sale under the plaintiff’s judgment against McCauley. In our opinion, the question does not arise. What happened was this: The plaintiffs bought McCauley’s equity of redemption, and now stand in his shoes to enforce that right. If he were plaintiff against Fisher, he could not recover without proof of payment, or of tender before suit, followed by payment into court, or of such facts as would support and guide a conditional verdict. We do not see where the plaintiffs, who are subsequent judgment creditors of McCauley and simply hold his equitable right, get the power to enforce his equity to have back the land, without at the same time making the proof which he would have been bound to make.”
    
      The assignments of error specified, 1-3,v the portions of the charge included within brackets, quoting them.
    
      Warren G. Griffith, with him Thomas H. Capp, for plaintiffs in error.
    McCaully and his wife were competent witnesses. McLaughlin v. Fulton, 104 Fa. 161; Warren v. Steer, 112 Pa. 634; McMurray’s Ap., 101 Pa. 421. Their evidence established a contemporaneous agreement; and the other facts and circumstances, all clearly inconsistent with the theory that the parties regarded it as an absolute sale to Philip Fisher, were amply sufficient to establish the parol defeasance. Rhines v. Baird, 41 Pa. 256; Todd v. Campbell, 32 Pa. 250; Plumer v. Guthrie, 76 Pa. 441; Burger v. Dunkel, 100 Pa. 118; Nicols v. McDonald, 101 Pa. 519; Hartley’s Ap., 103 Pa. 407; Pearson v. Sharp, 115 Pa. 254-317.
    When Bensing took title to the property, he had, by reason of the sheriff’s prior levy and seizure of it, constructive, if not actual, notice, the property at this time being in custodia legis. Thurlow, to use, v. Rightly, 44 Leg. Int. 155; Eichelberger v. Gitt, 104 Pa. 72; Trefts v. King, 18 Pa. 160.
    McCaully’s bill in equity against the executors of Philip Fisher, under the doctrine of lis pendens, of itself, was sufficient notice of McCaully’s adverse claim. Diamond v. Lawrence Co., 37 Pa. 353; Fessler’s Ap., 75 Pa. 483.
    The deed (although duly recorded), with the parol defeasance, constituted an unrecorded mortgage, which was postponed and discharged by the sheriff’s sale of the property, on the execution issued by the plaintiffs on their judgment. Friedly v. Hamilton, 17 S. & R. 70; Corpman v. Baccastow, 84 Pa. 363; Wilson v. Schoenbergers Exrs., 34 Pa. 121; Shreeve v. Wheeler, 1 Penny. 288; Merkel & Smith’s Ap., 10 W. N. C. 116.
    The fact that the defeasance was a parol one, and incapable ■of recording, cannot alter this rule of law. Manufacturers’ & Mechanics’ Bank v. Bank of Pennsylvania, 7 W. & S. 340; Merkel & Smith’s Ap., supra.
    
      Grant Weidman, with him J. G. Adams for plaintiffs in error.
    —The proof necessary to convert a deed absolute into a mortgage must be clear, explicit and unequivocal. Plumer v. Guthrie, 76 Pa. 441; Nicols v. McDonald, 101 Pa. 514; Lance’s Ap., 17 W. N. C. 513; Todd v. Campbell, 32 Pa. 253; Burger v. Dunkel, 100 Pa. 118.
    The burden of proof is on the plaintiffs. Todd v. Campbell, 32 Pa. 253.
    It was the duty of the court to weigh the facts proven and ■determine whether they were sufficient to submit to the jury. Nicols v. McDonald, 101 Pa. 519; Burger v. Dankel, 100 Pa. 119; Todd v. Campbell, 32 Pa. 250; DeFrance v. DeFrance, 34 Pa. 385; Moore v. Small, 19 Pa. 461; Plumer v. Guthrie, 76 Pa. 441; Baird v. Oakeley, 68 Pa. 92; Guernsey v. Guernsey, 39 Pa. 86.
    The fact that Bensing is an innocent purchaser of this property without notice of this alleged parol defeasance is conclusive of this controversy. The true rule of lis pendens would seem to be that a purchaser is effected by the decision upon any claim to the property purchased if there be a litigation pending in which that question is decided. Dovey’s Ap., 97 Pa. 161; Newman v. Chapman, 2 Randolph, 93.
    The testimony of McOaully and his wife was not competent ■and should have been excluded. Karns v. Tanner, 66 Pa. 297; Arthurs v. King, 84 Pa. 525; Gardner v. McLellan, 79 Pa. 398; Fross’s Ap., 105 Pa. 265; McIldowny v. Williams, 28 Pa. 492; Wood’s Ap., 92 Pa. 390; Shaw v. Read, 40 Pa. 96; Bellas v. McCarty, 10 Watts, 13. See, also, Murray v. R. R., 103 Pa. 37; Carey v. Fairchild, 19 W. N. C. 413.
    At the time the judgment of the plaintiffs in error was obtained against MeCaully, and when the sale was had under the fi. fa. issued thereon, Bensing, the defendant in error, was in possession of the property in dispute. This was notice to plaintiffs in error of his title and equities. Jamison v. Dimick, 96 Pa. 55; Berryhill v. Kirchner, 96 Pa. 489; Hottenstein v. Lerch, 12 W. N. C. 4.
    Suppose the parol defeasance was made out by the plaintiffs, they could not recover without proof that the mortgage had been paid or satisfied in some way, or that a tender of the sum due had been made before suit, followed by a payment of the money due into court for defendant’s benefit. Gore v. Kinney, 10 Watts, 139; Bell v. Clark, 111 Pa. 94; McGrew v. Foster, 113 Pa. 647; Eberly v. Lehman, 13 W. N. C. 397; Peeples v. Reading, 8 S. & R. 139; Shreve v. Wheeler, 1 Penny. 288.
    March 4, 1889.
   Per Curiam,

Judgment affirmed.

Cf. Munger v. Casey, infra.  