
    Plumer against Robertson and another.
    Monday, September 25.
    if amortmortgage is recorded, enter into artides of agree-Vase of0 the mortgaged estate tind go into posoUTreconiin"°the articles, Son is not noS?aser°ofthe mortgagee’s articles; even where there is purchase in bturiiood". if be !eft as a circumstance to the sSid bT it is not ipso facto; legal [¡^““Fotice
    Mortgagor Voter duo agreement for the sale of the premlsfsfand the ri?01’t8aSee goes mío possession, but eeutlo^ofa”^ deed>the raortgagoi? leaves the country: if the mortgagee afterwards issue a scire facias on the mortgage, it is no relinquishment of his title under the articles; though accompanied by declarations to third persons (which did not appear to have conip to thp knowledge of one who has subsequently purchased of the mortgagor,) that hf held under the mortgage.
    In Error.
    ON a writ of error to the Common Pleas of Westmoreiand county, the record presented the following case.
    . An action of ejectment was brought in the Court below, by Alexander Plumer, against Andrew Robertson and John W. Sloan, for a house and other property, in Robbstoxun. * í l ^ ' Both the plaintiff and the defendants, claimed under John Hill, who being seised in fee of the premises, executed a mortgage to Robertson, one of the defendants, dated 1st Fe-binary, 1808, which was recorded on the 30tb of the following March. This mortgage was for the security of Robertson, against the payment of 690 dollars, for which he had bound himself as surety for Hill, to a certain Moses Babout, “ to be paid in six equal annual payments, to commence on the 1st April, 1808 and also as security for the sum of 910 dollars, which had been lent by the said Robertson to HUI, and was to be paid on demand. On the 1st April,il 1 1 7 1809, articles of agreement were executed between Hill and Robertson, by which Hill agreed to sell all his interest in the mortgaged property to Robertson, for the sum - ,- - j- - , , ,. ,, ’ to give him immediate possession, and to deliver him a deed pf conveyance, on or before the 8th day of the same month of April. It was agreed, that from this sum of g 1250, were to be deducted, the amount of the money due to Robertson on the mortgage, and also, all money which Robertson had paid, or made himself responsible for, on Hills account. On the back of the article was written Hill’s receipt to Robertson, for 1124 dollars 92 cents, the amount of what was due J . 7 ón the mortgage, in part payment of the purchase money mentioned in the articles. Immediately after the execution of this agreement, or some time before, (the evidence ón . w t ,. > this point being not quite clear,) possession was delivered to 
      Robertson, who has held it by himself or his tenants, ever since. These articles of agreement were written by Joseph Vankirk, a tavern keeper, on one of the leaves of his book of accounts, and remained there until about the 19th April, 1815, when they were cut out of the book, and proved by one of the subscribing witnesses. On the 21st April, 1815, they were recorded. The defendants gave parol evidence, tending to prove, that ■Robertson's purchase of the mortgaged premises, was talked of and generally known in Robbstown, and the neighbourhood. Robertson issued a scire facias on the mortgage, to November Term, 1814, against Hill, (who had removed some time before, to some place down the river Ohio,) and one Gamble, the tenant in possession. This scire facias was returned nihil, as to Hill, and made known. to Gamble. An alias scire facias issued against Hill, and the suit was continued till May, 1816, when it was discontinued. On the 1st April, 1815, pending these proceeding, Alexander Plumer, the plaintiff, obtained, in consideration of 110 dollars, a conveyance from Hill, of the mortgaged property, which was recorded 11th April, 1815. The plaintiff gave parol evidence of declarations made by Robertson, that he claimed the premises under his mortgage, and intended to have them sold by virtue of the mortgage.
    After the evidence was closed, and the counsel on both sides had concluded their remarks to the jury, the President of the Court of Common Pleas delivered the following charge.
    “ The plaintiff and defendants, both claiming title under John Hill, the question is, whether the plaintiff has a prior or better title than the defendant, Andrew Robinson. The plaintiff claims under a deed executed by John Hill, dated the 1st April, 1815, and recorded on the 11th day of the same month, subject to a mortgage to the defendant executed on the 1st February, 1808. The plaintiff has also given testimony to shew a tender of what was considered the amount of the principal and interest due on the mortgage, and that the defendant declined accepting the money tendered. Were there nothing else in the case, viewing it but as a security, the plaintiff having the legal title, would be entitled to recover, and the defendant’s only remedy would be upon the mortgage, to enforce payment of the money due to; him.'- Hill, the mortgagor, although strictly speaking having but an equity, is considered the owner, as having the large? share of the estate, until foreclosed by a decree or judgment, and this estate may be granted or or sold like any other property, subject to prior incumbrances, whether by mortgage or judgment. The defendant, for the purpose of shewing a prior title to that of the plaintiff, has given in evidence, an article of agreement between John Hill and himself, for the absolute sale of the lots in dispute, dated the 1st April, 1809, and, a possession delivered the sam.e day, in pursuance of that contract which has been ever since kept up by him through his tenants. Viewing it as a fair contract, and there is no presumption to the contrary, if the plaintiff had either actual or constructive notice of it, he ought not to recover, and the grant by Hill to him can be of no avail. But if he had neither one kind of notice nor the other, he is entitled to your verdict. There has been no testimony of express notice, but it has been proved by some of the witnesses, that the agreement between Hill and Robertson, was talked of and generally understood in that place, and that ■the latter acted as the owner of the property, part of which was for some time occupied by a person as a tenant under a lease by Robinson to one Wright, which person has been admitted to be a partner of the plaintiff, in the purchase from Hill. It appears, that Hill continued some years in the vicinity of the place, was embarrassed, and finally removed to the State of Ohio, without discharging some of his debts. The case so far, presents strong presumptive notice of the contract between Hill and Robertson, but for the suit on the mortgage, which was instituted previous to the deed from Hill to the plaintiff, as to require that caution on his part, which a prudent person ought to exercise, when the rights of others, as well as his own, are likely to be'affected. Our act of assembly, indeed, requires the recording>of deeds . within six months, for the purpose of preventing fraud ; but. when possession is taken under a fair contract, it is equivalent to a compliance with the terms of the act, and thefirst purchaser complying with the terms of the contract, can hold against a subsequent one, notwithstanding the deed of the latter be first recorded. The principal difficulty arise's from the bringing suit on the mortgage. It is alleged to have been brought under a mistake or misapprehension by the defendant, of his rights ; but if the testimony of some of the witnesses adduced on the part of the plaintiff be correct, and there is little reason to doubt it, the defendant laid no claim to the premises, but through the mortgage. No intimation appears to have been given of the articles of agreement lodged in the hands of Joseph Vankirk, who was not called upon to prove them for the purpose of being recorded, until the deed to the plaintiff had been on record. The suit on the mortgage, accompanied by the defendant’s public declarations, may, for aught there appears to the contrary, have induced the plaintiff to make the purchase from Hill. Here then you have one presumption against another. I am at a loss to discover any particular merit in either of the parties, and I feel unwilling to impute fraud to either of them. The plaintiff has the legal title, subject to the principal and interest due on the mortgage. The defendant had an equitable one, under the articles with Hill but if the plaintiff had no notice of it, and if the defendant, Robertson, can be considered as having waved all claim under these articles by his own acts and declarations, the equity is at an end; law must prevail. But we leave it to you to say, whether the proceedings in Court, and the defendant's declarations, amount to a waver of his former equity or not. I do not feel disposed to give any opinion as to that point. It seems rather a question of fact, than of law.”
    
    To this opinion, a bill of exceptions was tendered by the plaintiff’s counsel, and sealed by the Court.
    
      Alexander and Forward, for the plaintiff in error,
    denied that there was any notice proved in this case, either actual or constructive, by which his title could be affected. The possession of Robertson was not notice; it was susceptible of explanation. An absolute conveyance, may be explained .by the conduct of the grantee, who does not enter but receives the interest on his money. Powel on Mortg. 199,200. And a mortgagee coming into possession, is accountable for the profits. 1 Eq. Ab. 328. The only instrument on record at the time the plaintiff purchased, was the mortgage. To this he would naturally recur to ascertain the nature of the possession, which being consistent with the mortgage, would lead him to the rational conclusion that the profits were to be applied to the discharge of the debt. He might therefore, with good conscience, purchase the equity of redemption. Nor did he receive notice from any other source. Public rumour is not, as the Judge declared, a circumstance, from which notice might be inferred. Actual notice must be given by a person interested in the property, and in the course of the treaty for the purchase. Vague reports from persons not interested in the property, will not affect the conscience of a purchaser. Sugden, 532. (2d Am. Ed..} Nor is a tenancy under a third person, constructive notice to a purchaser, of the lessor’s title. Sugden, '544. (2d Am. Ed.} The Court were therefore wrong in saying, that the possession of Robertson, and the rumours in the neighbourhood, amounted to constructive notice, but for the scire facias and the declarations of Robertson that he claimed un^ler the mortgage.
    The institution of proceedings on'the mortgage, together with the declarations of Robertson, amounted in point of law, to a waver of his title under the articles of agreement 5 and so the law should have been laid down to the jury. If a mortgagee has a decree of foreclosure, and proceeds oit other security, it opens the foreclosure and lets in the equity of redemption of the mortgagor. 1 Eq. Ab. 3If. If the mortgagee gets an absolute deed, but suffers the possession to, remain for some time in the mortgagor, it is a relinquishment of the deed. 2 Eq. Ab. 591. Several cases of the same kind, are to be found in 5 Bac. Ab. 6. (Wils. Ed.} So here, the mortgagee, notwithstanding the articles which are kept entirely out of view, goes into possession under the mortgage, declares that he holds in the character of mortgagee, and institutes proceedings on the mortgage, for the purpose of recovering his money ; thus abandoning his alleged title under the articles altogether. At all events, whether or not this title was waived, was matter of law, of which it was exclusively the province of the Court to decide, and they erred in submitting it to the jury.
    
      A. W. Foster and Baldwin, for the defendants in error.
    By the mortgage, the legal title was in the mortgagee, and the plaintiff bought only the equity of redemption, which, in consideration of money paid independently of the mortgage, had been released to Robertson, who, by virtue of that release, as we contend, had been in possession many years before the plaintiff purchased. This possession, was matter °f conversation throughout the neighbourhood, was notori0us, and must have come to the knowledge of the plaintiff, who lived in the same town. Seeing Robertson thus openly in possession, it was his duty to apply to him, in order to ascertain under what title he held; for there is no evidence, that he ever heard of his declarations, that he held under the mortgage. Nor was it a natural inference that he did so, because, as the mortgagor usually retains possession of the land, the possession of Robertson was inconsistent with the mortgage.
    It was contended on the trial that Robertson issued the scire facias in order to complete his title, Hill having gone off without executing a deed ; and .that the plaintiff took advantage of this, and purchased the property under the idea that Robertson had committed himself. This involved matter of fact, as well as of law; and the Court did right in leaving the jury to determine, whether the scire facias was issued by Robertson through a misapprehension of his remedy.
   Tilghman C. J.,

delivered the Court’s opinion.

The record contains the evidence at large, and the charge of the Court to which the counsel for the plaintiff excepted. In considering the charge, I shall state what I take to be the substance of it, without laying too much stress on particular passages. In all cases of this kind, the question is, whether or not the law was declared to the jury in such a manner as might probably mislead them. There were two points on which the cause turned. 1. Had the plaintiff notice of the articles of agreement between Hill and Robertson?—2. Were these articles rescinded, or had Robertson acted in such a manner, that in equity, his claim ought to be postponed to that of the plaintiff?

1. I think the jury might have concluded from the charge, that the possession of Robertson amounted to constructive notice of the articles of agreement, and were thus misled in point of law. In general, possession may be sufficient notice of the title of the possessor but this principle is subject to many exceptions. Where a man is in possession, without making his title known, a prudent person would not purchase without making enquiry into that title. But where he who is in possession, has placed upon record a title consistent with that possession, it may well be taken for granted that he holds under he recorded title; especially in this Commonwealth, where every deed, or writing, affecting the title of lands, may be, and ought to be recorded. But it has been. urged on the part of the defendant, that the possession of Robertson was inconsistent with his title under the mortgage, because it is not usual for the mortgagee to be in possession of the'mortgaged estate.—It may not be usual, but it is certainly not inconsistent- with the mortgage, that the mortgagee should be let into the possession, in order to keep down the interest by receipt of the profits, and apply the surplus, if any, towards the discharge of the principal. And in a case like the present, where legal proceedings were instituted on the mortgage long after the mortgagee’s entering into possession, it would be most convenient" if the law were to imply from his possession, the notice of a title different from that under the mortgage. The possession of Robertson, was a circumstance to be left to the jury, but they should have been told that it was not, ipso facto, a legal presumption of notice.

2. With respect to the proceedings on the scire facias, and the declarations of Robertson that he held under the mortgage, the President of the Court of Common Pleas thus expressed himself: “ But we leave it to you, (the jury,) to say, whether the proceedings in Court, and the defendant’s declarations, amount to a waving his forrher equity, or not, I do not feel disposed to give any opinion as to that point. It seems rather a question of fact, than law.”—I incline to think, that the effect of these proceedings and declarations, (supposing the declarations proved beyond doubt,) was matter of law rather than fact. Whether the parol declarations were proved, was for the jury to decide, but the legal conr sequence, was to be determined by the Court. But the plaintiff has no reason to complain that no opinion was given on that point, because the opinion, if given, ought to have been against him. The proceedings on the scire facias, and the declarations of Robertson, that he claimed under the mortgage, admitted of explanation. The defendants’ counsel say, that Robertson, not having received a front Hill, who had gone away, commenced a suit on the mortgage, not with an intent to wave his right under the articles of agreement, but in order to have the property sold by the sheriff, of which he might become the purchaser, and thus extinguish Hill's equity of redemption. This is not improbable, as it is difficult to assign a reason why Robertson, who had purchased the right of Hill, and paid a valuable consideration for it, should relinquish his title under the articles. It seems to me, that the point on which the cause should have been submitted to the jury, was, whether or no, the plaintiff had actual notice of the articles of agreement. If he had, he ought not to recover. I do rot say, that Robertson's title would not have been lost, in equity, if he had told the plaintiff, before he made the purchase, that he had no claim but under the mortgage. That would have made a strong case for the plaintiff, but there was no evidence of any such thing, or even of the plaintiff being informed of the declaration made by Robertson to one of the witnesses, that he claimed under the mortgage. If the plaintiff knew of the articles of agreement, which amounted in equity, to a sale to Robertson, he ought to have made enquiry of Robertson, before he purchased for himself. And if, as argued by the defendant’s counsel, he perceived the slip which Robertson had made, in sueing out the scire facias, and intended to avail himself of it, by purchasing the equity of redemption for a trifling consideration, and compelling Robertson to account for the profits while he held the possession, it was an artifice against good conscience, and not entitled to any countenance in equity. But be that as it may, if he had actual notice of the articles, and went on to purchase, without making enquiry of Robertson, he purchased at his peril. I am of opinion, that there was error in the charge of the Court, with respect to constructive notice, and therefore the judgment should be reversed, and a venire de novo awarded.

Judgment reversed, and a venire facias de novo awarded.  