
    David Messenger, and James Maholm v. Joseph Armstrong and William B. Harding.
    In a case in equity to enforce a vendor’s lien, where the premises after the purchase had been mortgaged by the vendee to a third person, and sold under a decree upon the mortgage to such third person, the vendee is incompetent on the ground of interest, to give testimony in behalf of the complainant.
    This is a bill of review, reserved in Licking county.
    Joseph Armstrong, one of the present defendants, filed a bill in chancery on the 20th August, 1841, in the common pleas of Licking county, against Harding, the other defendant, and Messenger and Maholm, the present complainants.
    In the original bill, Armstrong set forth, that in July, 1832, he had sold a certain tract of land named therein, to the aforesaid Harding, for one thousand dollars, and executed to him a warrantee deed for the same; that a large amount of the purchase money remained due and unpaid at the time of filing the bill. He had issued an execution against Harding, upon a judgment previously recovered for a part of the same purchase money, but Harding was wholly insolvent and had neither personal nor real estate subject to the levy of an execution; that in the year 1833, Harding mortgaged the premises to the aforesaid David Messenger, who knew at the time, that they were purchased by Harding of complainant, and that a large amount of the purchase money was unpaid. He afterwards executed another mortgage, and the first was canceled. Messenger foreclosed his last mortgage, caused the premises to be offered for sale, under his decree upon it, and at the sale became the purchaser at two thirds the value thereof, knowing at the time of the purchase, that Harding was still indebted to the complainant for a large sum of money due for the same, and that Harding was insolvent and unable to pay the sum so due. Some time after* wards, Messenger sold and conveyed the premises to said James Maholm, who knew the before mentioned facts, that Harding had bought of complainant, had not paid the money due for the premises, and was insolvent and unable to pay, and that Messenger had purchased in manner above stated. The bill prayed for a decree subjecting the land to the payment of the balance due of the purchase money.
    The defendants in the original bill, Messenger a,nd Maholm, put in answers to it, under oath, denying all knowledge of the claim set up in the bill until after purchasing the premises. Harding, the other defendant, did not answer.
    The cause was taken by appeal from the common pleas, and the supreme court, at their September term, 1848, in Licking county, rendered a decree against the defendants, finding the amount of the unpaid purchase money and interest to be $950.54; and holding that Armstrong, the complainant, had a vendor’s lien upon the premises for the payment of the same, with the accruing interest and costs.
    To reverse this decree of the supreme court, the present bill of review is prosecuted.
    One of the errors assigned, under the bill of review, and the only one considered by the court, is the admission, by the court below, of the deposition of William B. Harding.
    
      Smythe and Sprague, for complainants in review.
    
      H. H. Hunter, for defendants.
   Avery, J.

Without the aid of the deposition of Harding in the original case, the testimony would not have been sufficient to prove in the other defendants, against their denial under oath, a knowledge of the complainant’s claim for the purchase money; and of course, had the deposition been excluded by the court at the hearing, no decree in the case could have been given for the complainant.

The two defendants, Messenger and Maholm, 'objected to the deposition when it was taken, on the ground of interest in the witness ; and insisted, for the same cause, upon the trial, that it should be excluded from the consideration of the court.

If Harding had an interest to testify in favor of the complainant, then it was error in the court to receive his deposition, and use it as evidence at .the hearing. The object of the bill was to enforce a vendor’s lien upon the land. It had been sold by the complainant, and conveyed by deed to Harding, one of the defendants. Harding had mortgaged it to Messenger, another defendant, who instituted proceedings upon his mortgage, bought in the land at a public sale, under the decree, and thereby satisfied the mortgage debt. Afterwards, Messenger sold the land to Maholm, the other defendant. All this time there remained due from Harding, to the complainant, a considerable part of the purchase money, amounting, as found by the court at the time of rendering the decree in the present case, to $950.54. Now it is very obvious from this statement of the case, that Harding had an interest that would dis- ■ qualify him, unless it was balanced or overcome by some other interest. But here the proof does not show a contract on the part of Harding, by which he could be made liable to the defendants for neglecting to remove the incumbrance; nor from the state of case does it appear that a legal liability could rest upon Harding to answer to the defendants, upon their paying Harding’s debt to the complainant, or upon their suffering the premises to be sold for the payment of it, nor is it shown that in any other manner the interest is removed.

Harding’s interest, then, as against his co-defendants, for aught that appears, existed at the time when he gave his deposition, and at the time of Ihe trial; it ought, therefore, to have excluded his deposition — and because it was not so excluded, the decree of the court is reversed.  