ERROR to the circuit court of the United States in the district of Columbia, for the county of Washington.
In the circuit court, the plaintiffs in error instituted an action of ejectment for the recovery of a lot of ground in the district of Columbia. It appeared in evidence that under a decree of the circuit court for the county of Washington, the estate of John Peltz, deceased, had been sold by Charles Glover and John Davis, trustees, appointed for the purpose of making sale of the same, for the payment of his debts; and that the defendant in error had purchased at the sale the property in controversy. No deed had been made by the trustees to the purchaser, in consequence of the loss of some title papers; but he had paid the greater portion of the purchase money.
John Peltz, the ancestor of the plaintiffs in error, had, previous to his decease, mortgaged the estate in controversy to Frederick Gammar; who proceeded on the mortgage in chancery, against the trustees, Charles Glover and John Davis, and against Alexander and Michael Peltz, as heirs of John Peltz; and obtained a decree of foreclosure, and for a sale of the mortgaged premises. The defendant in error, after the decree, having been so advised by the mortgage, paid to him, with the consent and approbation and in the presence of Mr Glover, one of the trustees, the whole amount due upon the mortgage; the sum paid being considered as part of the purchase money due under the purchase from the trustees. On this payment being made, the mortgagor gave to the defendant in error, a receipt for the amount of the mortgage, and an order to enter the suit on the mortgage 'settled.' On the docket of the court, an entry was made in the mortgage suit, 'settled says complainant. See order.'
The plaintiffs claimed the property as the heirs at law of John Peltz.
The plaintiffs prayed the court to instruct the jury, that the mortgage so paid was not outstanding and subsisting so as to bar the plaintiff's right to recover; which the court refused to do; to which the counsel for the plaintiff excepted: and judgment having been entered on the verdict for the defendant, the plaintiffs prosecuted this writ of error.
Mr Key, for the plaintiffs in error, contended; that although the defendant might have a good defence in equity, for the mortgage money paid by him, he had no defence at law. He cited Rummington on Ejectment, 119. Esp. N. P. 457, 458. 6 Johns. Rep. 34. 2 Harris and M'Henry, 9, 17. 3 Harris and M'Henry, 399.
Mr Jones, for the defendant, said; that on the plaintiffs' own showing, there is a mortgage in fee, a forfeiture, and a decree of foreclosure. If a mortgage is satisfied by the mortgagor, it is admitted that the mortgage cannot be set up; but here the purchaser, before he received a deed from the trustees, under their sale, paid off the mortgage; and he sets it up for his protection. Having paid the amount of his purchase from the trustees, within a small sum, the defendant stands on his possession, and having paid for his own benefit the outstanding mortgage.
Mr Chief Justice MARSHALL delivered the opinion of the Court.
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This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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