
    [Sunbury,
    1827.]
    FASHOLT against REED.
    IN ERROR.
    Judgment against one who has articled to sell, but made no deed, nor received the ■whole purchase money, is a lien on the yendor’s interest; and, if the vendee purchase a mortgage made by the vendor prior to the sale, he is justified in having a sale under the mortgage to obtain the title clear of incumbrances, and is to be allowed by the vendor the costs of such sale.
    It is settled, that a purchaser by articles, entering and continuing in possession, must pay interest, though there may be cases where the jury would be justified in refusing it.
    Error to (he Court of Common Pleas of Northumberland county, in an ejectment brought by John Fasholt, the plaintiff in error and plaintiff below, against John Feed, the defendant in error and defendant below, and the following were the circumstances appearing on the trial:
    On the 11th of March, 1816, John Feed contracted to sell a tract of land to Valentine Fasholt, at the price of eight pounds per acre. Fasholi was to pay five hundred pounds on the first day of April, when the deed was made: it was to be a good and sufficient deed.- The deed was not made at the time appointed. At the execution of the articles, Fasholt paid one hundred dollars, and he paid eight hundred dollars in April, and other payments at different times, till the 2d of .May, 1817, when he had paid in all one thousand, five hundred and twenty dollars.
    , On the 28th of January, 1817, a deed from Feed to Fasholt was executed, and bonds and a mortgage from Fasholt for the balance of purchase money were prepared; but none of them delivered, on account of some dispute about the quantity of land, in which Feed appears to have been wrong.
    At that time; it being discovered there was a mortgage on the land, Feed gave a bond with security to Fasholt, to indemnify him against the mortgage. All the money secured by the mortgage was not then due. Fasholt was in possession. Nothing further appeared to have been done by either party for some time.
    To April Term, 1822, suit was brought on the mortgage; and at AprU'Tevm, 1823, when the land was exposed for sale, Fasholt applied to the plaintiff’s attorney, and bought the mortgage, which was assigned to him on the 23d of May, 1823. At August Term, 1823, the land was sold on the mortgage, and purchased by Fasholt, and a sheriff’s deed made to him. Between the articles of sale from Reed to Fasholt, and August, 1823, several judgments had been obtained against Reed in the Court of Common Pleas of Northumberland county.
    On the 7th of July, 1823, Reed tendered the deed to Fasholt, the mortgage being then the property of Fasholt, and agreed to allow him the amount of the mortgage, and- demanded the balance of the money.
    
      Fasholt refused to pay the money, on account of the judgments against Reed, and demanded the costs on the mortgage, and claimed an abatement of interest, alleging that he had kept his money idle; and that Reed, neglecting to make a deed, was a reason why he should not pay interest. Reed insisted, that as the judgments were entered after the date of the articles, and also after the date of the deed, they did not bind the land.
    
      The court below charged the jury, that when a defendant is in possession of the land, he is obliged to pay interest from the time the money becomes due, unless he tenders his money and demands his title, or gives notice that the money is ready. In this case there was no tender of- money, and interest is chargeable. The , defendant contended, that he ought to be allowed for the costs which accrued on the sale or mortgage. The mortgage was as-' signed to Fasholt, on payment of the debt and interest due upon it. After the mortgage was assigned, or transferred to him, there was no necessity of a sale upon it. To this charge the defendant excepted.
    
      Greenough, for the plaintiff in error.
    
      Bellas, contra.
    
   The opinion of the court was "delivered by

Huston, J.

The law is now settled, that a judgment against a man who by articles has agreed to sell, but who has not made a deed, nor recovered the whole of the purchase money, is a lien on the vendor’s interest, and a purchaser under a sheriff, of such interest, will stand in the place of the vendor, be entitled to the money due from the purchaser, and bound to ipake a deed to the purchaser, according to the articles of agreements. Reed’s interest in this land was then bound by these judgments; and his deed, executed the 2Sth of January, 1817, but never delivered, did not alter the case.

Under these circumstances, Fasholt was justified in having a sale on the mortgage, for the purpose of obtaining a title clear of incumbrances; and, if it had become necessary by the delay and misconduct of Reed, ought to have been allowed the costs on the mortgage suit, and sale.

After a verdict claimed for the amount of the mortgage and costs, Fasholt claimed an abatement of interest. He proved that he had kept some money by him, as he said, to pay for his land; but he did not know how much he had kept, nor how long he had kept it. There was no proof of a tender by him, and demand of his deed at any time, and nothing said in the record of any money being brought into court. Generally, the person who wishes to stop interest must prove a legal tender, and plead it, and bring the money into court. This was an ejectment to compel the payment of the purchase money, in which the plea of tender was not necessary; but it should have been proved, and the money brought into court.

It has been long settled in this state, that where lands are sold on articles of agreement, and the buyer enters into possession, and so continues undisturbed, he must pay interest; and the mere fact that his deed was not made at the time agreed on, does not stop the interest. There may be cases where he has been harassed or disturbed in the possession, where there has been wilful and vexatious delay, or gross or criminal laches in the vendor, in which it may be left to a jury whether he shall recover interest, and there may be such facts proved hereafter. But, from the evidence in this case, there was nothing on this subject proved which required the judge to leave the question of interest to the jury. But there was error in saying Fasholt was not entitled to the costs on the mortgage suit; and for this cause the judgment is reversed, and a venire de novo awarded.

Judgment reversed, and a venire facias de novo awarded.  