
    [Philadelphia,
    December 28, 1827.]
    KEARNEY against TANNER.
    IN ERROR.
    Where on a sale of real estate there is an agreement by the vendee that he will pay the mortgage money due on it, and afterwards the vendor is compelled to pay it in virtue of his personal liability, assumpsit for money paid lies against the vendee.
    
      It seems, if such mortgage money forms part of the price of the land, it is just that the vendee should pay it.
    But it must appear money was paid, to sustain a narr. in assumpsit for money paid: substitution of a mortgage for a judgment will not amount to such payment.
    Counsel may be permitted to withdraw part of a claim in summing up to a jury*
    Error to the District Court for the city and county of Philadelphia, where a verdict and judgment were rendered in favour of Henry S, Tanner, the defendant in error and plaintiff below, against Francis Kearney, the plaintiff in error and defendant below.
    The plaintiff declared in assumpsit for. money paid, laid out, and expended to the use of the defendant, and claimed the sum of eight hundred and. thirty-one dollars and thirty-three cents, with interest from the 24th of March, 1823.
    The plaintiff and defendant with two others, in January, 1817, formed a co-partnership for three years in the engraving business, under the firm of Tanner, Vallance, Kearney, and Company. In 1820, the defendant, being desirous of retiring, the plaintiff agreed to purchase all his interest in the concern for the sum of three thousand dollars. The defendant, on the 12th of January, 1820, assigned his interest to the plaintiff, by an instrument in writing, and to pay the defendant, the plaintiff) on the same day, gave him his notes for eleven hundred dollars, (which were subsequently paid,) and conveyed to him a house and lot in Twelfth Street, in the city of Philadelphia, at the price of three thousand three hundred dollars, incumbered, previous to the deed, by the plaintiff’s mortgages, which were accompanied by bonds and warrants of attorney, to the amount of one thousand four hundred dollars, subject to the payment of a ground rent to Edward Burd, Esq., by whom it had been originally granted to those under whom the plaintiff held. The defendant entered into possession and paid the ground rent and interest on the bonds and mortgages for a few years, when he abandoned the possession and refused any longer to pay them, The mortgagees sued out their mortgages; and, having obtained judgments, sold the property at public sale. It was bought by the plaintiff for one thousand and twenty-five dollars; but after applying the price for which it sold to the payment of the mortgages, there was a deficiency towards satisfying the remaining sum due on them and the ground rent together, of eight hundred and twenty-four dollars and thirty-one cents. The plaintiff being personally liable on the judgments entered on his bonds, satisfied the mortgagees by giving other mortgages on different property for their balance, and the ground landlord by giving his notes: and the mortgagees entered satisfaction on the old mortgages and on the judgments, which had been entered on the bonds; but no cash was paid before this suit on either of these accounts.
    The plaintiff’s counsel, on the trial, while concluding their arguments, withdrew the claim for ground rent, no money having been paid at the institution of the suit, nor the notes satisfied.
    The defendant’s counsel prayed the court to instruct the jury,
    1. That the defendant did not render himself personally liable to the plaintiff to pay the mortgages executed by the plaintiff previous to the sale to the defendants.
    2. Nor did he render himself personally liable to the holders of these mortgages.
    3. That the defendant was only liable in respect of the estate held by him.
    4. That the plaintiff cannot recover in the present action against the defendant, because no money was paid at the time he declares against the defendant as liable.
    5. That if at the time the action was brought no money had been actually paid by the plaintiff on account of ground rent, then the plaintiff cannot recover.
    6. That the giving a.note for the ground rent is not such a payment as makes the defendant liable to the plaintiff therefor.
    7. That the defendant is not liable for any interest due on the mortgage, further than the estate purchased by him.
    8. That the defendant is not personally liable for any sum of money the plaintiff may have paid: 1st, on account of the ground; 2d, on account of the interest due on the mortgage!
    9. That even though the general rule of law may render the defendant liable to the plaintiff for the deficiency of the mortgages; yet, if the jury believe it was understood and agreed that the defendant should not be liable, then the .plaintiff cannot recover.
    Charge of the court below:—
    M'Kean, President. — This action is called in law an action for money paid, laid out, and expended for the defendant. The plaintiff’s claim is eight hundred and thirty-one dollars and thirty-three cents, with interest from the 24th of March, 1823. The claim is founded upon a contract. Much evidence may be thrown out of the question. The parties were partners for three years, and skilled in their profession, acquainted with each other, the nature and profits of their business, and the quantum and. nature of their stock. The defendant was willing to go out of the firm; the plaintiff was willing to buy the share of the defendant; it was valued at three thousand dollars. The agreement was made, and there is no suggestion of fraud or overreaching. The terms of payment were, eleven hundred dollars in notes, and a house valued at three thousand three hundred dollars, on which there were mortgages to the amount of one thousand four hundred dollars.. The defendant agreed to take the house. The defendant was liable to pay the ground rent and incumbrances on the property, if he knew of them when he purchased. That he knew of the incumbrances may be inferred from his payment of the interest. If the fact be, that he agreed to take the house subject to these incumbrances, then he undertook to pay them and indemnify the plaintiff, and is liable in this action. Of this fact you will determine and judge. The ground rent he undertook expressly to pay. Although the defendant purchased the property, yet the plaintiff continued liable, and Kearney became bound to indemnify him. The fact whether lie purchased subject to these incumbrances you will determine; and, if you determine in the affirmative, then it results that, if the plaintiff is bound to pay, the defendant is liable. The defendant continued in possession until the sale by the sheriff. The plaintiff' was compelled to pay the money. An execution levied is not necessary; it is sufficient if it be paid to prevent an execution against him. Judgment had been entered against the plaintiff; he was personally bound. The sale of the property was under the mortgages, but the plaintiff remained liable and his whole estate. He, therefore, must have purchased himself, or get some one to purchase for him, to protect himself: he purchased for one thousand and twenty-five dollars, subject to the mortgages.
    As to the ground rent, it might be a question whether the defendant is liable, because the plaintiff was not personally bound; but of this you need not judge, as the plaintiff has withdrawn his claim for the ground rent in the present suit. It has been urged by the defendant, that the plaintiff had lost his claim by making the purchase. I do not see how it can have this effect. The payment of part cash, giving a new mortgage, and the entry of satisfaction of the old mortgage, are sufficient to bring this suit.; and the defence of the defendant on (his point is not well founded.
    Two questions arise in this case:—
    1. Did the defendant purchase the property subject to these incumbrances ? If so, it is a part of the contract to pay them, there being no suggestion of fraud or circumvention.
    2. Did the defendant thus uudertake to pay these incumbrances ? If so, then the plaintiff must recover: the principles of law are perfectly plain, and the only question to be determined in the case is a question of fact, which I leave to your decision.
    To this opinion the defendant excepted.
    Specifications of error, by the plaintiff in error.
    1. It appeared in evidence, that at the time laid in the declara» tion; viz. (the 6th day of February, 1823,) no money whatever, or substitute for money, had been paid or delivered by the plaintiff' to any person whatever.
    2. The court directed that if a man purchase an estate, liable to a mortgage, he becomes bound to pay the same, as well personally as in respect of the estate; and adopts and makes the debt his own.
    3. The court decided that Kearney was liable in this action to Tanner for the amount of the mortgage executed t.o Tanner, though Tanner became the owner of the same by a sheriff’s sale, and the property revested in him as before the purchase by Kearney.
    
    
      ' 4. Because the court decided the plaintiff below could maintain this form of action, (money paid, laid o.ut, and expended,) without having paid any money, by having given new. securities for the same.
    5. Because the court allowed the plaintiff, while his counsel was concluding his addresses to the jury, to withdraw a part of the plaintiff’s claim.
    Randall, for the plaintiff in error.
    
      T. Sergeant and S. Levy, contra.
    
   The'opinion of the court was delivered by

Rogers, J.

It has been erroneously supposed, that it was adjudged by the late Judge M‘Kean, that a purchaser of mortgaged premises made himself personally liable to the mortgagee, for the amount due on the mortgage. If such had been the decision, it was well calculated to create alarm; as the assertion, by high authority, of a principle, heretofore not so understood by the profession, and most extensive in its operation. I was pleased to find on a careful examination, that this does not appear to have been his opinion. The charge of the court admits of this construction; and, when fairly considered, no other meaning can fairly be collected from it; that when there was an agreement that the vendee should pay the mortgage money, and afterwards the vendor had been compelled to pay the amount due on the mortgage, he could sustain an action for money paid, laid out, and expended against the purchaser. That an action will lie, where there is a special agreement cither express or inferred from circumstances, is-not. denied; for, it forms part of the purchase money or price of the land, which it is just, and in compliance with his agreement, that the vendor should pay. But the defendant contends there was no such agreement; and that, as there was no actual payment of money by Tanner, the common money counts cannot be sustained. The facts necessary to raise the only point in the cause are fully stated in the hill of exceptions. It is not pretended there was an actual payment of the money, nor was there what has been considered in some cases as equivalent. The parties continue the same, the debt the same, but the security for the money is changed from a judgment, which is a- general lien, to a mortgage, which is specific. And this distinguishes’the case from Slaymaker v. Gundaker’s Executors, 10 Serg. & Rawle, 75, where the debt, as well as the securities were changed. Gundaker ceased to be liable on the old note, and Slaymaker alone was liable to the bank, whose agents considered it as a payment of the note, on which Gundaker was endorser. The situation of Kearney is in no respect changed, by the transaction which is alleged — to amount to payment. What is the necessary evidence t.o support án action for money paid, laid out, and expended, is clearly and explicitly ruled in the case of Morrison v. Burkey, 7 Serg. & Rawle, 238. A surety for another, on a bond, who gives the obligee a new bond with surety, and a warrant of attorney on which judgment is entered up, but no money is paid, cannot recover against the principal in an action on the common money counts for money paid, laid out, and expended. A specific article, or security advanced for another, is not .money paid on his account. To recover on a general count for money paid, it should'appear to be money actually and necessarily paid to the party’s use. There must be an actual advance of money. The same principle is again operative in the case of Doehler v. Fisher, 14 Serg. & Rawle, 179, and in divers analogous cases décided on the common count for money had and received. After such repeated recognition of the principle, (hat there must be an actual payment of money, it would Be unreasonable now to overthrow what has been so solemnly adjudged. It is better to suffer partial inconvenience than the law should have the appearance of having vibrated between two opinions. If the rule, stare decisis, has any application, it is here; and we have the less reluctance in adhering to these cases, as we consider this a mere question between a general and a special declaration. It is to be remarked, that there is no room for the presumption that the money was in fact paid by Tanner. The record negatives every presumption of the kind.

We have no doubt the plaintiff had a right to withdraw from the jury the demand of ground rent.

Judgment reversed, and a venire facias de novo awarded.  