
    WASHINGTON COUNTY,
    August Term, 1798.
    Lessee of Daniel Dimond v. David Enoch.
    EJECTMENT for 230 acres of land, of July term, 1797.
    On 3d October, 1786, James Fitzpatrick conveyed in fee simple an improvement and 230 acres of land (the premises in question) to David Enoch ; who gave a bond, of the same date, to Fitzpatrick, in 252l. 8s. conditioned, that, if Fitzpatrick pay or tender 126l. 4s. on or before 1st March then next ensuing, Enoch will reconvey the tract of land that day conveyed. On 1st June, 1788, this bond was assigned to Daniel Dimond, who had bought the land from Fitzpatrick for 200l. as appeared by an article of the sale, dated 29th December, 1786, by which he bound himself to pay 126l. on the 1st March then next ensuing. About the year 1789 or 1790, Dimond went to Enoch, and proposed to take or give satisfaction. Enoch declined both. In spring, 1797, Dimond tendered upwards of 530 dollars to Enoch, who refused to receive it.
    
      Fitzpatrick had bought the land from one Bozier ; and a bond of Fitzpatrick to Bozier, for the payment of 126l. 4s. with interest due on it, part or all (it did not appear which) of the consideration money, had been transferred to Enoch. Fitzpatrick, not being able to pay the money, executed the conveyance, dated 3d October, 1786, to Enoch, and took from him the bond of that date. As good or better land, in that part of the country, has been sold since, at twelve shillings and sixpence per acre. Enoch was not to take possession of the land, till after default of payment by Fitzpatrick, on 1st March, 1787. A few days after that, he had the land surveyed on a warrant which he purchased for it. Fitzpatrick was present and made no opposition, and did not say, that he had transferred his interest in the land. Enoch has continued in possession, and made improvements.
    
      3 Bac. Abr. 634.—2 Com. Di. 299.
    There was no evidence of any specific conversation or agreement, between Enoch and Fitzpatrick, at the time the conveyance was made in October, 1786. One witness said, he understood it as a mortgage ; another said, he understood, that, if Fitzpatrick paid the money, at the time mentioned in the bond, the land was to be reconveyed to him. But, if he did not, that Enoch would hold it by the conveyance.
    Simonson, for the defendant,
    offered to shew a warrant for the land, in the name of another person, at the time that the conveyance and bond were executed in October, 1786 ; and, urging that a defendant may claim under any title, stated, that, here, there was an adverse title, at the time, and that Fitzpatrick imposed on Enoch, and gave him a security, to which he had no right.
    
      Campbell objected to this, that the defendant having come into possession under a deed which he accepted from the plaintiff ; cannot now dispute the plaintiff’s title. In an ejectment on a sheriff’s sale, the debtor cannot set up a title from another person. It was so determined at Nisi Prius, in Allegheny county, last May, in the case of Baldwin v. Bently.
    
    President. If a man take a lease from another, can he set up an adverse title, to bar an ejectment, or a claim for rent, by the lessor ? We reject the testimony ; but, if insisted on, the point may be reserved, though I see no difficulty in it.
    
      Simonson. A covenant for the benefit of the covenantor, must be strictly complied with. All covenants must be taken according to the intent of the parties.
    
      Lyon, for the plaintiff.
    This is a mortgage. And, the money, with interest, having been tendered, the title of the mortgage is extinguished.
   President.

A conveyance may be considered as a mortgage, though the defeazance be on a separate paper. We have not sufficient evidence, on which to found an opinion how this transaction ought to be considered.

But I do not think, that we ought to strain hard, to construe a transaction of this kind as a mortgage. If, without violating any rule of law, we can consider it as the parties intended, we ought to do so. It may be considered as a conveyance on a certain condition, the default of payment on the day. Each party may have wished to avoid the costs and trouble of a suit on a mortgage. Fitzpatrick may be supposed to say, “Give me five months to pay the money without interest, and, if I do not, the land shall be yours and Enoch to say 'I agree.'

Suppose it a mortgage with possession ; cases might exist, in which a tender of only the debt and interest ought not to extinguish the estate. A man going into possession under a contract is not as a trespasser. May he not have a claim for necessary or proper repairs of improvements ? Or must he abstain from them, on the mere possibility of the other performing the condition ?- Was Enoch to have nothing for his warrant and survey ?

I lay not much stress on the conversation (for it seems to be nothing more) between Dimond and Enoch in the year 1789 or 1790. No specific proposition appears to have been made ; but only a trial whether Enoch was willing to depart from his contract with Fitzpatrick, and allow Dimond something for his speculation. No tender was made till 1797, ten years after the condition ought to have been performed. This seems to be unreasonable negligence. While it was doubtful whether the land was worth more than the money, Dimond seems to have been very inactive or indifferent. When an extraordinary rise in the value of land happened ; he presses for the land.

If the plaintiff’s counsel think this must be construed as a mortgage, they may move for a new trial. For I have said that it may be construed otherwise.

Verdict for the defendant.  