added to the amount of the real debt, making it $10,000 instead of $8,000. In support of this allegation there was no testimony but the unsupported oath of Joseph M. Payne,the defendant. It was absolutely denied by the oath of the plaintiff, and the case stood, on this subject, upon the oath of the plaintiff and the mortgagee on one side, and the unsupported oath of the defendant on the other. The letter of the plaintiff of March 2, 1871, written more than a year before, and in which the plaintiff said, “The amount is something over $8,000,” contained a mere casual and indefinite statement, not purporting to be precise, and is of no weight whatever when contrasted with the solemn and deliberate act of giving a mortgage for a different amount 15 months later. There was neither allegation nor proof of any fraud, accident, or mistake in the execution of the mortgage, nor of any promise then made as to its use which was subsequently violated. We have several times held that in these circumstances parol eVidence is not admissible to contradict or vary written instruments. We have also held that in any case where such evidence is admissible, if there is but the unsupported oath of one of the parties to the instrument on the one side, and the opposing and contradictory oath of the other party, together with the words of the instrument, on the other side, such unsupported oath is not sufficient to justify the reformation of the instrument, and in such case the evidence should not be submitted to the jury.

In Phillips v. Melly, 106 Pa. St. 536, both these phases of the general subject were carefully considered and authoritatively ruled, and our subsequent reflection and experience have confirmed us in the views there expressed. Authorities to the same effect are Thorne v. Warfllein, 100 Pa. St. 519; Nicolle v. McDonald, 101 Pa. St. 514; Smith v. National Life Ins. Co., 103 Pa. St. 184; North (Q‘ W. B. Ry. Co. v. Swank, 105 Pa. St. 555. In the case of Juniata Building Ass’n v. Hetzel, 103 Pa. St. 507, our Brother TRUNKEY expresses our convictions fully in the following language:

“The defendant seeks to escape liability on the ground of a verbal agreement that induced him to sign the bond, because it shifted his position, as it appears on the face of the bond, to a secondary one, which cannot be reached until after exhaustion of another security. He sets up an equitable defense, and contends that if the testimony of himself stands alone, and is contradicted by a dozen witnesses, it remains for the jury to determine the facts involved. This is true as respects every question of fact in any claim at law; but every right founded upon a claim which is strictly equitable, whatever the form of procedure, should be supported by evidence that would satisfy a chancellor. If a fact be averred in the bill, and denied in the answer, it can

not be pretended that the uncorroborated testimony of the plaintiff would be sufficient to establish such fact in a court of equity. ” '

As the attempt in the present case is to reform a mortgage by showing that it was given for an amount different from that which is expressed on its face, the contention comes clearly within the purview of the foregoing observations, which are repeated in 105 Pa. St. 561, 562.

In the portion of the charge covered by the fourteenth assignment, the learned court below submitted to the jury the determination of the ques

tion as to the amount due upon the mortgage as originally given, when, in our opinion, they should have given a binding instruction that it must be taken as $9,000, the amount stated in the instrument. In this we think there was error, and we therefore sustain the fourteenth assignment.

The argument that the mortgage was obtained by duress we regard as without merit in any point of view. The first and sixth assignments are not sustained.

As to the second, third, and fourth assignments we cannot understand why declarations or acts which transpired between the plaintiff and the defendant in the present action are not admissible, even though they occurred in the presence of George Payne. They are admissible, because they are the acts and declarations of these parties, and they are no less the acts and declarations of these parties in every sense in which the law can regard them whether any other person were present or not. We think that conversations with George Payne in his life-time, or acts then done with him, cannot be proved by Jackson in this case, because it was George Payne’s debt for which the mortgage in suit was given; and the plaintiff is the survivor of the transaction between him and George Payne, whose rights, in this respect, have devolved upon the defendant. But that circumstance cannot defeat the right of the plaintiff to testify as to what took place between himself and the defendant, whether George Payne was then present or not. The defendant is alive, is a competent witness, and can testify fully in relation to the same matters. Between them there is no inequality if both may testify to the same matters occurring when both were together, but there would be very serious inequality if the defendant may, and the plaintiff may not, testify as to such matters. We sustain these three assignments in so far as they cover the exclusion of evidence by the plaintiff as to acts and declarations occurring between the plaintiff and defendant in the presence of George Payne. In other respects they are not sustained.

The fifth assignment is unimportant. While, if the case stood only upon the mortgage of February 27, 1849, a presumption of payment would arise in 1872, yet, if the mortgage of 1872 were given in whole or in part for the same debt, that presumption would necessarily be thereby rebutted. The assignment is not sustained.

As to the seventh, ninth, tenth, and twelfth assignments, we do not feel that we can say there was no evidence, or not more than a scintilla, tending to prove at least negligence on the part of the plaintiff in the matters referred to, and hence we cannot sustain them. We do think, however, it would have been proper for the court to define with more accuracy the duty of the plaintiff in the premises, and to explain what acts or'omissions would constitute negligence, and even to refer, to some extent, to the testimony on both sides on these subjects. Merely naming the witnesses on each side, or some of them, and telling the jury that counsel have discussed it, and that they must find a fair and impartial verdict, is not an adequate mode of presenting such matters to a jury. It does not enlighten them as to what their duties are, nor does it furnish them with any sufficient guide for their action in considering and passing upon a mass of testimony, the meaning and effect of which may not be very intelligible to the ordinary mind without explanatory comments by the court. As the case must be tried again, we do not desire to discuss the testimony; nor do we feel called upon to reverse upon any of the assignments we are now considering, trusting that what we have said in a cautionary way may receive the consideration of the court on another trial. These assignments are not sustained.

As to the eighth and thirteenth assignments we have serious question whether there was even a scintilla of evidence upon which the plaintiff can be properly charged with culpable negligence for not prosecuting the suit against Freck with due diligence, and thus becoming chargeable with the consequences of an actual recovery and collection of the claim against him. Very able and experienced counsel were employed to commence and prosecute the claim. An action was brought in due season. There was delay in getting it tried, but it is not easy to see how the plaintiff is responsible for that kind of delay. The cause was repeatedly on the trial-list, but not reached. The time of the court was occupied in an extraordinary degree by the trial of very exciting and important criminal cases. It is a hard measure of liability for a private citizen to be held responsible for delay in collecting a claim when the delay is not of his own production. A judgment was recovered, but it was five years after suit brought, and in the mean time Freck, the defendant, became insolvent, and the claim was not collected. We will not reverse on these assignments, because what was said by the court was hypothetical, upon assumed facts, which, if true, would justify the conclusions expressed. But we have much doubt whether all the actual facts in evidence were sufficient to justify a conclusion of liability for negligence.

Upon another trial we think the circumstances which would constitute liability by reason of negligence should be defined with more precision in order that the jury may understand the duty to which the plaintiff was subject in this regard, and in what respects, if any, he disregarded it, to the injury of the defendant. The case is not the same as if the plaintiff already held a judgment against Freck for the claim in question, and failed to take proper measures for its collection; but it includes the necessity of first obtaining a judgment; and for that, after a suit was brought, other persons, some of them officers of the law, whom the plaintifl' could not control, are in part responsible; and the question is whether the delay was due entirely to the fault of the plaintiff, or whether, by greater exertions, such as a person would use in prosecuting his own claims, a speedier judgment might have been obtained, and, if so, whether it would have been in time to collect the claim. We cannot say there was error in the language covered by the fifteenth assignment. It is perhaps amenable to some of the foregoing criticisms, but in itself it is not error.

Judgment reversed, and new venire awarded.

McGREw and others v. Fos'rER. (Supreme Court of Pennsylvania. October 4, 1886.) TRESPASS—BY PURCHASER NEVER IN POSSESSION—PRICE no'r PAID—UNRECORDED TITLE—TENDER.

A purchaser of land under an unrecorded contract, who has never been in actual possession by residence or cultivation. but only to cut timber, and who has pald but part of purchase money, has neither actual possession of the land, nor the immediate right to it, and cannot, after the lapse of 30 years, maintain trespass against innocent bona fide purchasers in possession, under a record title, without tender of, and bringing into court, the balance of the purchase money due and unpaid.1

Error to common pleas, Warren county.

Trespass quare clausum fregit et de bonds asportatis. The facts are stated in the opinion. Verdict and judgment for plaintiff, whereupon defendants took this writ.

D. I. Ball, 0. H. Noyes, and C'. C. Thompson, for plaintiffs in error, McGrew and others.

Before an action of ejectment could have been maintained against the owner of the legal title, the purchase money must be tendered. Gore v. Kinney, 10 Watts, 139; Vincent v. Hufi', 4 Serg. & R. 297; Brindle v. Melloaine, 7 Serg. 8t R. 345. The contract gives plaintiff no right of possession. Irvin v. Bleakley, 67 Pa. St. 28; Smith v. Patton. 1 Serg. & R. 84; Baum v. Dubois, 43 Pa. St. 260; Weakland v. Hofi‘man, 50 Pa. 8t. 517; Welch v. Emerson, 95 Pa. St. 257; Bell v. Clark, 17 Wkly. Notes Gas. 44; S. C. 2 Atl. Rep. 80. This claim is too stale. Russell v.Baughman, 94 Pa. St. 400; Dohnert’s Appeal, 64 Pa. St. 311; Cadwalader’s Appeal, 57 Pa. St. 158; Miller v. Henlan, 51 Pa. St. 265.

Wilbur de Schoner, for defendant in error, Foster.

Defendants had notice of our title. Railroad Co. v. McOreary, 58 Pa. St. 304; Meals v. Brandon, 16 Pa. St. 225; Lodge v.8imonton, 2 Pen. 80 W. 445; Steckel v. Desh, 12 Wkly. Notes Gas. 130. The law presumes this balance to be paid. Where the vendor is in possession, his vendee must tender performance before he can maintain his action. This rule has no effect upon this case. Brewer v. Fleming, 51 Pa. St. 103; Ipes v. Cress. 5 Pa. St. 118; Robb v. Mann, 11 Pa. St. 304; Weed v. Hall, 101 Pa. St. 596; Baker v. King, 18 Pa. St. 144; Railroad Co. v. Charley, 99 Pa. St. 176; Nicol v. Carr, 35 Pa. St. 381; Ong v. Campbell, 6 Watts, 397.

CLARK, J. The facts in this case are not disputed. The title to the 50 acres of land from which the timber in controversy was cut, was originally in E. J. Pettibone, who, fifteenth August, 1846, conveyed the same, with other lands, to Ansel St. John. The plaintiff below claimed title under an unrecorded contract in writing dated tenth April, 1854, between Ansel St. John (executedby his attorney in fact, Lansing Wetmore) and\Samuel Ward, by the terms of which St. John, in consideration of the sum of $100, agreed to sell and convey to Ward the premises now in question. The purchase money was payable, $25 in hand, and $75 in two equal annual installments, with interest; the deed to be delivered, free from incumbrance, upon payment of the purchase money. The hand money was paid at the execution of the contract, but the residue of the purchase money still remains unpaid. After his purchase, Ward had a trial survey made, to ascertain the lines approximately. A resurvey, however. by a regular surveyor, was contemplated. He cut some timber, but never went into the actual possession, by residence or cultivation. On the twenty-eighth March, 1865, Sam- _ uel Ward assigned his interest to Archibald Ward, who, eighth April, 1867, assigned the same interest to A. J. Foster, the plaintiff below.

The defendants claimed title through a series of recorded conveyances, embracing, with other tracts, the lands in dispute, in part, as follows: Ansel St. John and wife to Thomas P. St. John, dated seventh May, 1855, recorded sixth June, 1855; Thomas P. St. John and. wife to Samuel Lilly, dated twenty-third August, 1859, recorded twenty-eighth September, 1859; Samuel Lilly and wife to A. H. Ludlow, William Martin, and Adna Sawyer, dated seventh December, 1859, recorded fourteenth March, 1860. In the deed last recited, after the description of the several tracts embraced therein, is contained a clause as follows:

“ Also all contracts and articles of agreement for the purchase of said tracts, and all balances due and unpaid on any contracts and articles of agreement made by Lansing \Vetmore for the sale of any portion of the above-described tracts of land, it being the true intent and meaning of these presents to convey to the said party of the second part all the right, title, and interest of, in, and to the above-described premises which were conveyed to Samuel Lilly by Thomas P. St. John by deed dated August 24, 1859.”

By various conveyances in due form, and duly recorded, the title of Ludlow and Martin to the 400 acres of tract No. 223, described in the deed from Ansel St. John, became vested in the Great National Petroleum Company, and the title of Adna Sawyer in the same tract became vested in James McGrew. Each of these deeds recited a consideration, and acknowledged the receipt thereof.

, The plaintifis in error, who were the defendants below, contend—— First, that Thomas P. St. John and Samuel Lilly, under whom they claim, were bona fide purchasers for value, and that they are therefore not affected by the unrecorded contract of tenth April, 1854; that the clause above quoted from the deed of Samuel Lilly to Ludlow, Martin, and Sawyer is not a reservation or exception of the 50 acres from the grant contained in the deed, nor was it notice to subsequent purchasers of the contract with Ward upon which the plaintiff relies; and. second, that, in any event, before the plaintiff could bring and maintain this action, he must have paid or tendered the purchase money; that, standing upon the terms of his contract, he would be met at the threshold with his own default.

It is not necessary for us to consider the first ground of this contention, as the second, in our opinion, is certainly decisive of the case.

In Minsker v. Morrison, 2 Yeates, 346, the general rule was declared that a purchaser of lands who seeks redress under his articles must bring his money into court, in order to show his readiness to perform his con