#### James *v.*Noaker.

The affidavit of defence, in this case, averred the giving of the mortgage, upon which suit was brought, to pay for a debt, due to a building association, previously ascertained, and further averring that defendant had since learned that he was not indebted to the association or the plaintiff, setting out the details of liquidation. Held, that the transactions recited did not operate as an estoppel, and that the affidavit was sufficient to prevent judgment.

May 15, 1889.

Error, No. 72,'July T., 1889, to C. P. Union Co., to review the discharge of a rule for j udgment for want of a sufficient affidavit of defence, on a sci. fa. sur mortgage by Chas. R. James, use of Anna W. James, against George and Catharine Noaker, at March T., 1886, No. 38. Sterrett and Mitchell, JJ., absent.

Feb. 5, 1886, an affidavit of claim was filed, not printed in the plaintiff’s paper-book, but it appears that the mortgage was for $527, and it is stated, in the argument, that a credit of $171.44 is allowed in the affidávit of claim.

The affidavit of defence, filed March 20, 1886, averred as follows :

“In the spring of 1867, Catharine Noaker purchased from the trustees of St. Paul’s Evangelical Church of Lewisburg, upon articles of agreement duly executed, the property described in said mortgage, upon terms and conditions as follows: $225, on April 1, 1867; $200, on April i, 1868; $200, on April 1, 1869; $200, on April 1, 1870; and interest. She paid and had credited on said articles, April 1st, 1867, $125.00.

“ George Noaker was the owner of four shares of stock in the Lewisburg Building Association, to wit: 3 shares in series No. 31; 1 share in series No. 32; and subsequently became the owner of another share, to wit: 1 share in series No. 40.

“ Defendants took possession of said house and lot, under said articles of agreement, on April 1, 1867, and occupied the same continuously until on or about April 1, 1880. They transferred said articles of agreement and said five shares of stock to the Lewisburg Building Association, as security for loans, and purchased loans as follows:

*518May 9, 1868, on 1 share..................................$160.13

April xo, 1869, on 2 shares.............................. 307.00

May 14, 1870, on 1 share................................ 162.65 and one other loan on the fifth share, the date and amount not known to defendants, but at about the same rate as before, to wit........................... 160.00

“ They paid the dues and intei'est on their several loans until they matured the shares in series No. 31 and No. 32. And also continued payment on the said fifth share in series No. 40 until said Association failed and made an assignment for the benefit of creditors.

“ The purchase money remaining due on said articles of agreement after the first payment of $125.00, were as follows :

April 1st, 1867.............................................$100.00

Int. first year................................................ 6.00

April 1st, 1868............................................. 200.00

Int. first year................................................ 36.00

April 1st, 1869............................................. 200.00

Interest...................................................... 24.00

April, 1870 ............................................. 200.00

Interest....................................................... 12.00

Total (should be $778)..................$798.00

“The payment of $100 on April 1, 1867, was made by C. S. James, Secretary of said Association, but whether from his private funds or from the funds of said Association is not known to the defendants.

“On March 14, 1874, George Noaker and C. S. James had a settlement of the money which C. S. James then claimed to have advanced and paid for George and Catharine Noaker, and for which George Noaker gave his promissory note to Chas. S. James, viz, for $69.59, and, as collateral security for the same, transferred to C. S. James four shares of stock in the Home Building Association, for which said C. S. James realized a considerable sum of money over and above said debt of $69.59.

“On Feb. 1, 1878, C. S. James took title from the said trustees for said house and lot, and held the same in trust for Mrs. Catharine Noaker, and so held the same until April 1, 1880. On said 1st day of April, C. R. James represented to defendants that they remained indebted on said transaction as follows :

To said Building Association...........................$256.00

To C. S. James individually.............................. 270.00

$526.00,

and that said James had personally assumed the payment of said alleged debt of $256.00 to said Building Association, and that de*519fendants were therefore indebted to him in the sum of $527.00. Said James then, by deed, conveyed said house and lot to Mrs. C. Noaker and took from her the mortgage upon which this writ of sci. fa. has issued. Mrs. C. Noaker, and George Noaker, her husband, executed and delivered said mortgage to Charles R. James, son of C. S. James, to secure to said C. S. James the money which said C. S. James alleged and represented he had so paid for and on account of said George and Catharine Noaker, and for and on account of said purchase from St. Paul’s Evangelical Church.

“ Defendants were never indebted to Chas. R. James, the mortgagee, and there was no other consideration for said mortgage; and said mortgagors now say: That they have since learned that they were not so indebted to said Charles S. James nor said Building Association, and that the consideration for which said mortgage was given has failed, and that they further say: That, for a period of about five years, said C. R. James has collected the rents for said house; and for any deficiency, if any, which existed, or any indebtedness which remained at the time said mortgage was given to said James has been fully paid and satisfied since said mortgage, and that nothing remains due from the mortgagors to the mortgagee or his father, C. S. James, or the Lewisburg Building Association, and that nothing remains due and owing on said mortgage.”

The plaintiff moved for judgment for want of a sufficient affidavit of defence, assigning the following reasons :

1. The defendants are estopped from denying their liability to the plaintiff by admission of the indebtedness for which the mortgage was given.

2. They allege no credit other than has been given.

3. The affidavit is vague, indefinite and evasive, alleging no fact which constitutes a defence to the claim of the plaintiff.

September 24, 1887, the court ordered the rule to be made absolute, unless a sufficient affidavit of defence be filed within twenty days. *

A supplemental affidavit was filed Sept. 29, 1887, averring the following facts:

*“*On Feb. 28, 1867, said defendants purchased from the trustees of the Evangelical Church of Lewisburg, by articles of agreement, a copy of which is hereto annexed and made a part of the affidavit, the property described in said mortgage.

The terms of payment were as follows:

April 1st, 1867, (or on possession being given,).....$200.00

April 1st, 1868, with int. from Apr. 1, ’67............ 225.00

April 1st, 1869, “ “ “ Apr. 1, ’67............ 200.00

April 1st, 1870, “ “ “ Apr. 1, ’67............ 200.00

$825.00

*“*On April 3, 1867, said defendants paid and had credited on said articles of agreement the first payment, to wit: $200.00, and at *520the same time took possession and moved into said house and occupied the same continuously until about the 1st day of April, 1880— that is to say, about thirteen years.

“ George Noaker was also the owner of four shares of stock in the Lewisburg Building Association, to wit: 3 shares in series No. 31, and 1 share in series No. 32, and subsequently became the owner of an additional share in series No. 40. For the purpose of paying for said house and lot according to the terms of said articles of agreement, the said Geo. Noaker purchased loans on his said stock as follows:

The proceeds of his first loan, April 1, 1867......................$160.13

The proceeds of his second loan, April, 1868, on 2 shares

of stock'........................................................... 307.00

The proceeds of his third loan, April, 1870................ 162.65

The proceeds of his fifth and last share, 1874, (this was paid to Noaker — see statement).............................. 143.06

$772.84

“ Defendants transferred said articles of agreement and said five shares of stock to said Lewisburg Building Association as security for said loans; defendants paid all the dues and interest on said stock and loans until the four shares, to wit: three shares in series No. 31, and one share in series No. 32, matured, and also continued payment on said fifth share in series No. 40 until said Building Association failed and assigned for the benefit of creditors.

“ The purchase money remaining due on said articles-of agreement, after the first payment of $200.00, was as follows :

April 1st, 1868.........................................................$225.00

Interest on $625 from Apr. 1, ’67................................. 37-50

April 1,1869............................................................. 200.00

Interest on $400 from April 1, ’68.................................. 24.00

April 1, 1870.......................................................... 200.00

Interest on $200 from April 1, ’69.............,................... 12.00

$698.50

The contract price for house was...................................$825.00

First payment April 3, 1867........................................: 200.00

Balance...........................................................$625.00 The proceeds of the ist loan, as above stated,

(Apr. 1, 1867,).................................$160.13.

“ Out of this loan of $160.13, C. S. James used and applied $100 only on that first payment of $200 on said articles April 3, 1867, and $100 in cash was paid by Mrs. Noaker. The said C. S. James, Secretary of said Building Association, was transacting all the business for said Geo. and Catharine Noaker.

*521“ Said transactions were as follows:

Purchase money on contract with Evangelical Church...$825.00

Credit on articles, 1st payment by Mrs. N.........................100.00

$725.00

Credit on articles, 1st payment from the proceeds of 1st loan of $160.13...................................................100.00

“ This balance of $625 was payable in three annual payments, with interest, as above stated, making a total of $698.50.

The balance in the hands of C. S. James, April 3d, 1867,

from 1st loan, was...............................................$ 60 13

This remained in his hands until in April or May, 1868, when he received the proceeds of 2d loan on two shares of stock, to wit,................................................. 307 00

Now in the hands of C. S. James................................$367 13

But, as defendants have learned since they executed said mortgage, James did not apply the money in his hands to the payments due the Evangelical Church until 1869, and then only............................................$213 50

Balance in James’ hands, April, 1869.............................$153 63-

In April, 1870, the proceeds of the 3d loan came to Tames’

hands.............................................................. 162 65

Amt. in James’ hands April, 1870.......................;.........$316 28

James then paid....................................................... 450 5°

Amount due James, April, 1870....................................$134 22

The Ev. Church-received from James as above:

April, ’67.....................................................$100.00

April, ’69.................................................... 213.50

April, ’70.............................. 450-50

Total..............................................$764.00

And interest................................................ 34-5°

$798.50

“This, with the $100 paid by Mrs. Noaker, makes $896.50, the total debt and interest on the articles of agreement.

“ James received from loans as above:

April, ’67.......................................$160.13

April, ’68..................................... 307.00

April, ’70....................................... 162.65 $629.78 $168.72.

*522“This sum of $168.72 was due James after the final payment on'the articles of agreement to the Evangelical Church.

“ On a settlement had between said C- S. James, and George Noaker on the 14th day of March, 1874, this indebtedness by Noaker to James was reduced by payments and credits allowed to the sum of $69.59, and for this sum said Noaker gave his promissory note to said James, and at the same time, March 14, 1874, also gave to said James four shares of stock in the Home Building Association as collateral security for said note of $69.59 (from which James realized $372.89, less dues paid by him). At the end of March, 1874, said Noaker was in arrears on his dues in the L. B. A. in the sum of $123.45. Then (March, 1874,) a loan was made to him on his fifth and last share in that Association.

The proceeds of this last loan were...................$143 06

Out of this was applied to his back dues..........,. 123 45

Leaving in James’ hands abalance.....................$ 19 61

“On June 4, 1879, said James realized from said collateral, to wit: the four shares of stock in the Home Building Association, $372.89, which more than paid.the $69.59 due March 14, ’74. Nothing now remained due to said James or to said L. B. A., except as hereinafter stated.

“April 1st, 1880, said L. B. A. claimed a balance of $157.88 against said Noaker on account of his last loan. James credited Noaker on the books of said Association.........................$83.29 Leaving a balance as appears by said books against Noaker of...$74.59 and this is the balance due, if anything, to said Association, when said mortgage was given. Since then James received rents from said house above expenses paid $158.10. James also rec’don judgment of Noaker on Dr. Brugger $34.65 — $182.75, which more than paid the balance claimed by said Association', and nothing remains due on said mortgage.

“On April 1, 1878, said C. S. James took title from said trustees of said Evangelical Chuixh for said house and lot, and held the same in trust for Mrs. Catharine Noaker, and so held the same until April 1, 1880. On said April 1, 1880, Charles R. James, a son of said C. S. J., represented to said George and Catharine Noaker, defendants in this suit, that they remained indebted for said house on said transactions, and importuned them to take the title and give a mortgage for the balance alleged to be due. And on the same day, after the execution of said mortgage, said C. R. J. made the following statement to said George Noaker:

“ ‘Lewisburg, Union Co., Pa., April 1, 1880.

“ ‘ Mr. Geo. Noaker :

“ ‘ Dear Sir: Statement of sums included in mortgage given this day by George and Catharine Noaker to C. R. J. :

*523Claim of L. B. A. assumed by C. R. J., to Nov. 5,’71, $250.84 Int. from Nov. 26th to Apr. 1, ’80, on $256.94............ 6.10

Claim of C. S. J. as per statement to Mar. 1/ 79, $260.01 Less credit allowed,.......................................4.00

Interest to April 1, 1880,................................14.08 $270.09

The yearly interest will be $31.62. $527.03

I said my charge would be.................................. 12.00

This will cover all services I have given you to date, including today’s work. I will deduct this and recording deed and mortgage, and acknowledging (50 cts.) from the rent, and will send you rec’t when I get it.

“ ‘ Yours truly, ‘ c. R. J.’

“ The defendants further say that they were never indebted to said C. R. J., the mortgagee, and that there was no other consideration for said mortgage. They have since learned that they were not indebted to said C. S. J., nor to said B. A., as the said C. R. J. represented. And that the just and true sum due to said L. B. A. did not exceed $159.85, and of this sum the said C. S. J. assumed and credited on the books of said Association the sum of $83.29 only.

*“*Since the date of said mortgage, the said C. R. J., for a period of about five years, collected the rents from said house, and has received in rents over and above the costs and expenses on account of the same, the sum of........................................ $158.10

And has also received from the estate of Dr. Brugger on act. of a judg’t in favor of said Noaker, and against said Brugger,.................................................. 34-65

Total......................................................... $I92-7S

Said sums of money, to wit: $158.10, rents, and $34.65 from Dr. Brugger’s estate, pd to C. R. J. for said Noaker with then paid and satisfied said mortgage in full, and by reason of the facts hereinbefore stated nothing remains due and unpaid on said mortgage.

*“ ‘*COPY.

*“ ‘*This agreement made and concluded this 28th day of February, 1867, between the Trustees of the Evangelical Church of Lewisburg, Union Co., of the first part, and George and Catharine Noaker, his wife, of East Buffalo Twp., Union Co., of the second part, witnesseth that the said Trustees, for in consideration of eight hundred and twenty-five dollars par money, sell and convey to the said George Noaker and wife a certain two-story house, with twenty-one feet of ground, from the front on Fourth St., through to an alley on east side of said lot, adjoining James McFadden on the south, and lot of said Church on the north, together with stable and appurtenances. The payments to be in the following order: Two hun*524dred dollars on or before the 1st day of April next, or on possession being given; two hundred and twenty-five dollars on 1st day of April, 1869, with int. from istday of April, 1867; two hundred dollars on the 1st day of April, 1870, with interest from the istday of April, 1867, the whole interest to be paid yearly.

“‘In witness whereof we have hereunto set our hands and seals the day and year above written.

Lewisburg, Ap. 3d, 1867, Rec’d on the above written agreement the sum of two hundred dollars by me.

Cyrus Brown, Treasurer.

($100 of the above furnished by C. S. J.)

“‘Lewisburg, Ap. 1st, 1868, on the within agreement,$225, received as Treasurer. Cyrus Brown, Treasurer.

(The above was paid by note of C. S. James.)

“‘April 1st, 1868, int. paid on the within agreement up to this date $37.50.

“ ‘April 1st, 1869, int. paid on the within agreement up to April 1st, 1869, $24.00.

“‘Rec’d April 24th, 1869, on the within agreement $200, due April 1st, 1869. Cyrus Brown, Treasurer.

“ ‘ $200.00.

“ Rec’d April 2d, 1870, on the within agreement $450.50 in full of principal and interest on the within agreement.

“ ‘ $450.00 M. Dreisbaci-i, for C. Brown, Treas.’ ”

“ Of the above $450, two hundred was for last payment

on the property...........................................$200.00

Int. on same...............................................................12.00

For note given Ap. 1st, 1868..........................................225.00

Bal. of int. on same....................................................13.50

“$450.50”

The court discharged the rule, whereupon the plaintiff took this writ.

*The assignments of error*specified the action of the court, 1, in discharging the ruling; and, 2, in not entering judgment for want of a sufficient affidavit of defence.

*f. Merrill*Linn, for plaintiff in error.

The vague language of the first affidavit, in which it is often impossible to tell whether C. S. or Charles R. James is referred to, does not allege that Charles R. James fraudulently represented the wrong amount as due, nor *525that he had any interest in the amount that was due, nor that he had not paid C. S. James the amount of the mortgage given “to secure C. S. James.” Of course, C. S. James would be secured when he was paid, but the affidavit does not aver that C. R. James held the mortgage in trust for C. S. James, nor that the transaction between the defendants and C. S. James and the Lewisburg Building Association was not then completed, and that there was not a novation with Charles R. James, as the mortgage shows.

It does not aver that C. S. James or the Lewisburg Building Association have now any interest whatever in the mortgage.

The language of the second affidavit connecting Charles R. James with the transactions before the date of the mortgage, or showing any interest of C. S. James in the present mortgage, is no stronger than the first. The expression, “ were never indebted to said C. R. James,” is like that used in Noble *v.*Kreuzkamp, in Pa. 68, and is “ insufficient by reason of its generality, not being connected with specific facts.”

One specific fact does appear from the letter quoted in the affidavit, viz., that, before the signing of the mortgage, there had been settlements between the defendants and the Building Association and C. S. James. This admission was acted upon by outside parties, viz: 1st, Charles R. James, afterwards Anna W. James. The defendants are now estopped from denying this admission: 1 Greenleaf, Ev., 270 and 272; Brooke *v.*N. Y. & L. E. R. R., 1 Cent. 125; Armstrong *v.*Levan, 1 Cent. 137. Hence, it would be futile to send the case to the jury: Black *v.*Halstead, 39 Pa. 71.

It is averred that, since the date of the mortgage, the plaintiffs have collected the rents from said house, etc., to the amount of $192.75. Credit is allowed in the affidavit of cause of action for $21.31 less than this sum. The plaintiff contends that this averment is not made with sufficient distinctness or particularity, and it is not stated that this set-off was paid on account of this mortgage. The times of payment are not given, nor the amounts of rents collected, nor the amounts of costs or expenses; nor is it averred that none of these rents collected were paid to defendants or to other parties for their use. It is therefore insufficient: Coulston *v.*Bertolet, 11 Cent. 152.

A similar criticism can be made of the greater part of the affidavits referring to the transactions before the signing of the mortgage. The statements are not distinctly averred, they are vague and evasive, dates are often omitted and no account is taken of interest. Affidavits of defence must deal with facts, not conclusions of law: Endlich on Affidavits of Defence, p. 303. They must contain specific statements of facts. The court is to judge of the legal effect of the facts stated: Mitchell’s Motions and Rules, 66; Endlich, 347. General demands are insufficient: Endlich, 304. It was never held sufficient to prevent judgment to say I paid the debt, or do not owe the claim: McCrackens. 1st Reformed Pres. Church, *526ill Pa. 106. It must disclose state of facts sufficient to exhibit the elements of a substantial defence; the facts should not be set forth in any equivocal or evasive manner, but with reasonable precision. ... It must set forth facts specifically; mere general denials, which involve questions of law as well as facts, are insufficient. . . . General averments, when not connected with specific facts, are insufficient : Noble *v.*Kreuzkamp, 111 Pa. 68. It must not be general in its terms or evasive in its effects: Gould *v.*Gage, 118 Pa. 559.

May 27, 1889.

The defendant must state his facts so as to be liable to an indictment for perjury if his statements are untrue: Endlich, § 369.

The affidavit must be constrüed most favorably for the plaintiff, as it is altogether probable that the defendant will in all cases state the nature and character of the defence as strongly as the facts will justify: Comly *v.*Bryan, 5 Whart. 261.

It must state material disputed facts that should be passed upon by a jury: Potter *v.*Pittsburg Southern R. R., 1 Cent. 902.

*Samuel H. Orwig,*for defendant in error,

presented no paper-book.

Per Curiam,

We think the affidavit of defence was sufficient to. carry the case to the jury. As it may come up again, we refrain from any discussion of it at present.

Order affirmed.

A memorandum of this case occupies page 126 of 127 Pa., but the points involved do not appear.