
    NAGLE against PATTERSON.
    
      A died intestate; his real estate was appraised and confirmed by the Orphans*' Court ■ to B, one of his sons; C became the surety of B in the recognizances to the other ' heirs, when an agreement was made that B should have one-half of the land, and should pay one-half of the recognizances. B and C took possession of the land, and had it divided between them by a line; C being liable to pay B one hundred dollars for the difference in value of the parts. C did not pay the one-half of the recognizances, nor the one hundred dollars to B. C’s interest was sold by the , sheriff, and B without having tendered a deed to C, or the purchaser, brought an ejectment for the land. Held: that he was entitled to recover a verdict, conditioned that it should be released upon the payment of the money within a specified time, which C was bound to pay.
    Appeal from the Circuit-Court of Mifflin county, held by Jus-, tice Huston.
    
    This was an action of ejectment in which Samuel Nagle was plaintiff, and John Patterson, who survived William C. Kelly, was defendant. Both parties claimed under the same title.
    The land in dispute belonged to Herman Wattman, who died intestate, leaving six children, of whom Samuel Nagle’s wife and Peter Rice’s wife were two. Upon the application of one of the heirs to the Orphans’ Court the land was valued, and subsequently taken at the valuation, by Samuel Nagle the plaintiff; who entered into recognizances with Peter Rice as his security, for the payment of the shares of the other heirs. Two of the four recognizances entered into, were paid by Samuel Nagle, These facts having-been established' by the plaintiff; the defendant gave in evidence, that at the time the land was taken at the valuation by Na-gle, an agreement was made between him and Rice, that he should take the land, and Rice should be his security in the recognizances; that each should have an equal interest in it, and that Rice should pay one half of the recognizances; — that Nagle and Rice both lived on the land, and appointed two men to divide it between them; who did divide it, and awarded, that in addition to the share Na-gle got, he should receive from Rice one,hundred dollars. Patterson and Kelly subsequently obtained a judgment against Rice and issued execution, and levied it upon “all the right, title and Interest of defendant, in a tract of land in Letch, township, containing,”'&c. which was the whole tract. It was afterwards sold on a venditioni exponas, and bought by Patterson and Kelly. It did not appear that Rice had paid any part of the recognizances, or of the one hundred dollars.
    The jury, by the direction of the court, found the following verdict:
    “We find for the plaintiff, he to file in the office of the prothon-otary of this court, a deed from himself to John Patterson, before he takes out execution; and further find that defendant be released from this verdict, on paying to the prothonotary of this court, the amount of the two remaining recognizances, or so much of them as he shall fail to produce before the prothonotary of this court, legal' evidence of having already been paid by Rice or himself; which money is to be applied to the discharge of said two recognizances, or said money, or so much thereof to go to Samuel Nagle as he shall show the prothonotary has been paid by him-.- And also the defendant to pay the prothonotary, at the same time, the sum of #100, with interest from the first day of January, 1817, unless he can show to the prothonotary, that the same or some part of it has been paid by Peter Rice or himself. That to enable the defendant to do these things, there be a stay of execution until the first day of July next, 1831, and upon payment of said moneys and costs of this suit, judgment in this suit to be released. ”
    The defendant moved for a new tidal which was refused and he appealed.
    
      Hale for appellant.
    The plaintiff could not recover without having tendered a deed to'the defendant and demanded his money before suit brought. Rice was in possession before the sheriff’s sale, and was entitled to the possession in the right of his wife, to the one-sixth at all events, and he could not have been turned out of possession by Nagle, without an offer on his part to perform his agreement to convey, &c. The verdict devolves a duty and power upon the prothon-otary which he cannot discharge,, but which should have been performed by the jury.
    Such a reference may be made by consent to the prothonotary,. but never by a verdict.
    
      Alexander for appellee.
    We deny that one cent was, ever paid by Rice or Patterson, The verdict is conditional no.t special. The verdict might have been general for the plaintiff; the conditions are for the benefit of' the defendant and of which he cannot complain. The whole legal title was in the plaintiff, and could only be divested by the defend-, ant’s having paid the recognizances, and made proof of that fact, Rice was to pay the heirs;.Nagle was not to pay them, and look tq Rice. No proof of the payment of a part was made, so as to, turn the burden of proof upon us.
    
      Planchard in, reply.
    When the deed is presented to the prothonotary, who is to judge of its sufficiency? When the evidence of payments is presented, who is to judge of their validity or genuineness? The whole matter of fact in the case tq be tried, was referred to the prothonotary, Nagle and Rice were partners in this transaction, although the land was confirmed to Nagle, yet Rice was equally interested; Na-, gle’s legal title was in trust as to the one half for Rice who was, equally bound for the amount p.f the recognizances.
   Judgment affirmed,  