Hartzog's Estate

Opinion by

Mr. Justice Schaffer,

William A. Hartzog and three others, in an action of ejectment for a three-fourths interest in a tract of land, recovered judgment against Israel T. Hartzog for $1,000 for mesne profits. On the same day -the verdict was rendered, William (his coplaintiffs not joining) and Israel entered into a written agreement, that the latter, in consideration of the satisfaction of the judgment, “the same to be satisfied when a deed is executed,” would convey all his right, title and interest in the land in controversy to William. The deed was never executed. Thirteen months later, William, as assignee of a first mortgage on the property, foreclosed and bought it at the sheriff’s sale; later on, he sold it at a profit. Nothing was done, so far as the record discloses, to collect the judgment in Israel’s lifetime, and it was not revived. Nine years after recovery of the judgment, on the death of Israel, William presented it as a claim against his estate; the auditor appointed to make distribution refused to allow the claim, principally on'the ground that it was stale; but the court set aside the auditor’s finding and awarded the amount of the judgment, with interest, to plaintiff; this appeal followed.

The contention urged upon us is that, while the contemplated deed never was executed, the parties intended the executory agreement—to make the conveyance—to be a complete acCortl anfd satisfaction in itself, anti that this is shown hy the circumstances that William, a little more than a year following the date of agreement, procured the entire title to the property by the sheriff’s sale (which rendered the execution of the deed unnecessary), sold it at a profit,- and, during the lifetime of Israel, made no effort to collect the judgment nor to revive it.

Israel, notwithstanding the outcome of the ejectment, was still, until the sheriff’s sale, the owner of an undivided fourth of the property, and the proofs are silent as to why the deed was not executed. We are asked to presume, on the one hand, that it was deemed best by the parties concerned to clear up the title by foreclosing the mortgage, which gave William all and perhaps more than he would have obtained by the deed, and, on the other, that the reason for the sheriff’s sale was because Israel had refused to execute a deed. This, however, is not a case in which presumptions can or should play any part; and it stands barren of proof that the executory agreement was to work a satisfaction of the judgment. While it may be that an executory agreement will constitute a complete accord and satisfaction if the parties so intend, certainly such intent must be clearly manifested, before a court will strike down the record, evidence of a debt. Since in this case there was no evidence of any such intent, and as the agreement provides irt plainest terms that the judgment shall be satisfied “when a deed is executed,” which never was done, the learned court below correctly held the judgment must be paid.

• The decree is affirmed at appellants’ cost.