Jones v. Patterson , 1 Watts & Serg. 321 ( 1841 )

The opinion of the Court was delivered by

Sergeant, J.

This is an ejectment for a lot of ground, brought by Patterson against Jones, to enforce the payment of the balance, of the purchase money due on articles of agreement for the sale of the lot, made between Patterson, the former owner, and SmulL Jones the defendant holds under Smull, as purchaser at sheriff’s sale. The plaintiff alleges that the two last instalments due under the articles were never paid, and claims their amount. He asserts that although Smull gave him his promissory note for the amount of the second instalment, $267.33, yet the note remains unpaid. The question on the trial seems to have been, whether the plaintiff was entitled to the second and third instalments or only the third. The defendant gave in evidence Patterson’s receipt to Smull on the back of the articles for the second instalment. The plaintiff then offered Smull as a witness to show, that when this receipt was given no money was paid, but Smull gave his promissory note to Patterson, which it was agreed should be credited only when paid, and that the note never had been paid; and also, that at the sheriff’s sale, Patterson gave notice of his claim to both instalments, and the defendant had no knowledge of the receipt endorsed. Smull was objected to by the defendant, as an incompetent witness, on the ground of interest, and the question is, whether Smull was admissible as a witness to prove these facts.

The effect of Smull’s evidence is to subject the land to the payment of the disputed instalment, and to discharge himself from the payment of his note. Should the plaintiff fail in establishing his claim to the second instalment, and obtain from the defendant by means of a conditional verdict, only the third instalment, he could maintain his action against Smull on his note, and Smull could not resort to the defendant, the purchaser. But should the plaintiff succeed here as to both instalments, the defendant would either be obliged to pay them on a conditional verdict, or the plaintiff would recover back again the lot, in which cases the instalments would be extinguished. Smull, therefore, is directly interested in the event of this suit, to the amount of his note and interest thereon.

But it is said Smull is at all events discharged from his note, because the plaintiff, by giving notice at the sale, and averring that the purchaser took the land subject to both instalments, has elected to look to the land, and waived his resort to Smull. I do not see how this effect could flow from the conduct of the plaintiff. On the contrary, his omission to give notice might with more plausibility be contended to have this effect. The plaintiff in giving notice did no more than it was right for him to do, for the safety of the purchaser. A person having concurrent securities, one personal, the other binding land, does not waive the former by asserting his legal claim against the latter, unless satisfaction or something equivalent be obtained. We are therefore of opinion that the court below erred in admitting Smull as a witness for the plaintiff.

There is nothing in the second error. The receipt was but a part of the transaction, and receipts are open to explanation by parol evidence of what occurred at the time between the parties, and of the circumstances and conditions under which they were given.

Judgment reversed, and a venire facias de novo awarded.