#### Saunders *v.*Gould.

Charles W. Hepburn was the owner of real estate encumbered by a mortgage and judgments both prior and subsequent to the mortgage. The premises were sold on an execution on a judgment subsequent to the mortgage, to Henry F. Hepburn, who was attorney for Charles W. Hepburn. The sheriff’s deed, however, was made to the defendant in this action, who then made a loan to Charles W. Hepburn, the deed being held as a security for the loan. Charles W. Hepburn afterwards executed a quit-claim deed to the defendant for the premises in dispute. The lien of the judgment accompanying the mortgage having subsequently expired, a judgment of revival was entered thereon against Charles W. Hepburn, execution issued and the property sold to the plaintiff. The court held, inter alia, that the quit-claim deed operated as a release of the equity of redemption, so that the sheriff’s deed to the defendant, although originally subject to an unrecorded defeasance, vested an absolute title in the grantee.

A re-argument was refused, which was asked on the ground that the title was never out of Charles W. Hepburn, as he was a mortgagor procuring a sale and purchase for himself, and, consequently, the liens were not discharged by that sale, and hence a good title passed to the plaintiff by the second sheriff’s sale.

A re-argument was also refused, which was asked bn the ground that the quit-claim deed was not offered in evidence, — the testimony as to the existence of the deed being undisputed.

May 10, 1890.

Petition for re-argument of Appeal, No. 247, Jan. T., 1889, from C. P. No. 2, Phila. Co. Reported in 134 Pa. 445. Sterrett, Clark and McCollum, JJ., absent.

*754The facts of the case, necessary to an understanding of the application for a re-argument, are stated in the syllabi.

The following reasons were filed in support of the motion for re-argument:

1. This court having found that the sheriff’s deed to Gould was simply a mortgage, with an unrecorded defeasance in favor of the mortgagor, Charles W. Hepburn, then holds that the mere allegation of a quit-claim deed having been executed and delivered, the deed itself not being in evidence, and the paper claimed to be such a deed having been ruled out of evidence, is sufficient as to third parties to pass a perfect title to Gould in fee simple. For the first time in Pennsylvania has it been held that a litigant, by mere word of mouth, can set up a title to real estate valid against creditors and bona fide purchasers.

2. This court having found that Gould’s title was, in 1873, simply that of a mortgagee of Charles W. Hepburn under an unrecorded mortgage, then it must follow that the title never was out of Charles W. Plepburn; he was the owner before, at the time of, and after the sheriff’s sale, up to the time at least of the talked-about quit-claim deed. If the quit-claim deed took the title out of him so that time then began to run against his judgment creditors, it would have no effect upon a mortgage creditor whose mortgage was made and recorded prior to 1873, while the title was in the mortgagor. So, while the lien of the Betts judgment, as against Charles W. Hepburn, as a general judgment, would expire at the end of five years, the mortgage against this particular property, regularly recorded, could not lose its lien. Gould, therefore, would take the title, under any quit-claim deed, even had such a deed been in evidence, subject to the Betts mortgage. Then, when the judgment upon the bond accompanying that mortgage was revived in 1882, the lien of the judgment dated back to the record of the mortgage. They were then both liens prior to Gould’s title in every sense, and a sale under the judgment on the mortgaged property passed the same title to the purchaser that a sale under the mortgage would have passed, a title clear of all acts of Charles W. Hepburn done subsequent to the date of the record of the Betts mortgage.

Good *v.*Schoener, 10 Leg. Int. 151, expressly decided that the title was never out of Charles W. Hepburn till the quit-claim deed was executed. Saunders *v.*Gould, 124 Pa. 237, expressly says that “ if Charles W. Hepburn himself had purchased at these sales, or Henry F. Plepburn, his attorney, had purchased for him, in his name and using his money for payment of the purchase money, the title would have been unaffected and the liens undisturbed thereby.” Yet, in the opinion now filed, the court finding these very facts, decides diametrically opposite to what it there says the law is. The same principles are decided in Jones on Mortgages, paragraph 680; Taylor *v.*Smith, 2 Wh. 432, 436; Woodburn *v.*Bank, 5 W. & S. 448; *755Clark *v.*Martin, 49 Pa. 303; Cleary *v.*Kennedy, 16 W. N. C. 313; McGill *v.*Jordan, 41 Leg. Int. 420.

May 28, 1890.

3. The opinion entirely passes over the part of defendant’s ar: gument upon the question of estoppel. .

To sum up: The court overlooked both the fact that the Betts judgment was upon a bond accompanying a mortgage, and also the necessary sequence following from the finding that Gould was, in the first instance, simply a mortgagee under an unrecorded mortgage, wherein Charles W. Hepburn was the mortgagor, that no mortgage, executed by Charles W. Hepburn and duly recorded before such quit-claim deed, could be affected thereby.

*Bradbury Bedell,*for the motion.

Per Curiam,

Re-argument refused.

Cf. Rauch *v.*Dech, 19 W. N. C. 398; Rushton *v.*Lippincott, 44 Leg. Int. 228.