The opinion of the Court was delivered by
Kennedy, J.
This action was brought on a bond given by the plaintiff in error, who was the defendant in the court below, to the defendants in error, who were the plaintiffs there, to secure the payment of part of the purchase money of a tract of land sold and conveyed by the latter to the former. The defence set up was, that the plaintiffs below had no right or title whatever to the land so sold and conveyed. The only question raised in the case is, whether the evidence offered by the defendant in the court below, and rejected by the court, tended to prove and establish such a defence. If it did, then according to a train of decisions which we have on the subject, it ought to have been received by the court, and submitted to the jury. Steinhauer v. Witman, (1 S. & R. 488, 447); 9 S. & R. 161; Hart v. Porter, (5 S. & R. 204); Carnahan v. Hall, (Add. 127); Lighty v. Shorb, (3 Penn. Rep. 450, [58]*58451); Share v. Anderson, (7 S. & R. 43); Fuhrman v. Loudon, (13 S. & R. 386). But it is proper to remark and bear in mind, that the right of the plaintiffs below to demand and receive the amount of the obligation is a perfectly clear legal right, free from all doubt whatever; whereas the defence set up is, at most, only an equitable defence, and before it can prevail must be made out by evidence tending to prove it clearly and distinctly. The evidence must be such as will completely overcome that violent presumption which arises in favour of the plaintiff in error’s having received a good title for the land from the defendants in error, from the circumstance of his having, after inspecting it, approved it, by accepting the deed conveying it to him, and thereupon given his bonds to them securing the payment of the balance of the purchase money. It is not sufficient, in such case, to offer or give evidence tending merely to show that the title which the purchaser has got is doubtful, or not merchantable, but he must show that it is positively bad, by proving a superior indisputable title to the land in a third person or party, who is asserting his right thereto by virtue of such title; otherwise it may be that the purchaser will never be disturbed in his enjoyment of the land by reason of it; or if he should, he may have his remedy on the covenants contained in the deed of conveyance made to him; and if it be that he has taken no covenant for that purpose, it goes strongly to show that he agreed and was satisfied to take the title of the vendor pretty much at his own risk. This he unquestionably had the right and power of doing, if he pleased; and if it should happen to turn out differently from what, he expected, he has but little, if any reason, to blame the vendor for it. It may be said, with truth, that he bargained for the vendor’s title merely such as it was, and that he obtained all he bargained for, even if he should afterwards lose the land by reason of a superior title to it in a third person. I do not wish, however, to be understood as saying that such superior title outstanding in a third person, when shown clearly to exist, and that he claims the land by virtue of it, will not be a good defence against the payment of a bond or bonds given for the purchase money, or any portion thereof, though a deed of conveyance has been executed by the vendor to the vendee; unless it was explicitly agreed and understood between them, at the time, that the vendee was to take the title of the vendor such as it was, whether bad or good, at his own risk: on the contrary, I admit, that according to the authorities first cited above, it will be a good defence. But I wish to be distinctly understood as laying down the principle, that in order to make such outstanding title a good defence, in such cases, it must be clearly shown to be indubitably good, and that the land is actually claimed under it. It is proper, however, to observe, that a different principle governs where the contract for the purchase of the land remains in fieri, and the action is brought on the contract itself with a view to enforce the [59]*59payment of the purchase money according to its terms. There, if it should appear that the title of the vendor to the land is anywise doubtful, the vendee will not be held bound to pay the purchase money for it; 5 Binn. 365; unless it should also appear that he had expressly agreed to do so. Dorsey v. Jackman, (1 S. & R. 42); Pennsylvania v. Sims, (Add. 9). But in the case under consideration, though it appears that articles of agreement were entered into, in the first instance, between the parties for the sale and purchase of the land, ye.t they were subsequently carried into execution by the vendee’s paying part of the purchase money and giving his bonds for the payment of the residue, and the vendor’s executing and delivering to him a deed of conveyance for the land with a covenant of special warranty. By the articles “ the defendants in error covenanted to deliver to the plaintiff in error, his heirs and assigns, a deed in fee-simple clear of all encum-. brances,” &c. It was said, in argument, on behalf of the plaintiff in error, that the articles of agreement still remained in force, notwithstanding the payment of part of the purchase money, and the giving of bonds by him for the residue thereof, and the execution and delivery of a deed conveying the land to him in fee-simple clear of all encumbrances, by the defendants in error. It appears to me, however, otherwise, for I am unable to discover anything contained in the articles, which was to be done and performed by either party, that has not been done; hence the articles can have no bearing whatever upon the case as it now stands. The articles contain no covenant upon the part of the vendors for further assurance, so that there is no ground for calling upon them to give to the vendee any other or further deed of conveyance or assurance than that which has been already received.
This being the state of the case, the question then presents itself, did the evidence offered by the plaintiff in error, and rejected by the court, tend to show an outstanding title for the land in a third person, better than that which he received from the defendants in error, and that such third person was actually claiming the land under it ? We think it very clear that it did not, and that it was therefore rightly rejected by the court. Indeed, I am inclined to think, that it is not even calculated to raise a doubt, as to the goodness of the title which the plaintiff in error received from the defendants. But it is said that it does not apply to, and embrace the land intended to be sold and purchased. The evidence, however, offered and rejected, does not. tend, in the slightest degree, to show that such was the fact, and therefore was not receivable for that purpose. Had evidence tending to prove that fact been offered in connection with the evidence that was rejected by the court, it might have raised a different question.
A question also arose, on the trial of this cause, as to the rate of interest that the plaintiffs were entitled to recover from the time that the bond became payable. It was dated the 1st of July [60]*601830, conditioned for the payment of 11143.75 on the 1st of April 1832, with three per cent, interest from the date thereof. The counsel of the defendant below contended that the plaintiffs, if entitled to recover at all, were only entitled to recover interest at the rate of 3 per cent.,
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The opinion of the Court was delivered by
Kennedy, J.
This action was brought on a bond given by the plaintiff in error, who was the defendant in the court below, to the defendants in error, who were the plaintiffs there, to secure the payment of part of the purchase money of a tract of land sold and conveyed by the latter to the former. The defence set up was, that the plaintiffs below had no right or title whatever to the land so sold and conveyed. The only question raised in the case is, whether the evidence offered by the defendant in the court below, and rejected by the court, tended to prove and establish such a defence. If it did, then according to a train of decisions which we have on the subject, it ought to have been received by the court, and submitted to the jury. Steinhauer v. Witman, (1 S. & R. 488, 447); 9 S. & R. 161; Hart v. Porter, (5 S. & R. 204); Carnahan v. Hall, (Add. 127); Lighty v. Shorb, (3 Penn. Rep. 450, [58]*58451); Share v. Anderson, (7 S. & R. 43); Fuhrman v. Loudon, (13 S. & R. 386). But it is proper to remark and bear in mind, that the right of the plaintiffs below to demand and receive the amount of the obligation is a perfectly clear legal right, free from all doubt whatever; whereas the defence set up is, at most, only an equitable defence, and before it can prevail must be made out by evidence tending to prove it clearly and distinctly. The evidence must be such as will completely overcome that violent presumption which arises in favour of the plaintiff in error’s having received a good title for the land from the defendants in error, from the circumstance of his having, after inspecting it, approved it, by accepting the deed conveying it to him, and thereupon given his bonds to them securing the payment of the balance of the purchase money. It is not sufficient, in such case, to offer or give evidence tending merely to show that the title which the purchaser has got is doubtful, or not merchantable, but he must show that it is positively bad, by proving a superior indisputable title to the land in a third person or party, who is asserting his right thereto by virtue of such title; otherwise it may be that the purchaser will never be disturbed in his enjoyment of the land by reason of it; or if he should, he may have his remedy on the covenants contained in the deed of conveyance made to him; and if it be that he has taken no covenant for that purpose, it goes strongly to show that he agreed and was satisfied to take the title of the vendor pretty much at his own risk. This he unquestionably had the right and power of doing, if he pleased; and if it should happen to turn out differently from what, he expected, he has but little, if any reason, to blame the vendor for it. It may be said, with truth, that he bargained for the vendor’s title merely such as it was, and that he obtained all he bargained for, even if he should afterwards lose the land by reason of a superior title to it in a third person. I do not wish, however, to be understood as saying that such superior title outstanding in a third person, when shown clearly to exist, and that he claims the land by virtue of it, will not be a good defence against the payment of a bond or bonds given for the purchase money, or any portion thereof, though a deed of conveyance has been executed by the vendor to the vendee; unless it was explicitly agreed and understood between them, at the time, that the vendee was to take the title of the vendor such as it was, whether bad or good, at his own risk: on the contrary, I admit, that according to the authorities first cited above, it will be a good defence. But I wish to be distinctly understood as laying down the principle, that in order to make such outstanding title a good defence, in such cases, it must be clearly shown to be indubitably good, and that the land is actually claimed under it. It is proper, however, to observe, that a different principle governs where the contract for the purchase of the land remains in fieri, and the action is brought on the contract itself with a view to enforce the [59]*59payment of the purchase money according to its terms. There, if it should appear that the title of the vendor to the land is anywise doubtful, the vendee will not be held bound to pay the purchase money for it; 5 Binn. 365; unless it should also appear that he had expressly agreed to do so. Dorsey v. Jackman, (1 S. & R. 42); Pennsylvania v. Sims, (Add. 9). But in the case under consideration, though it appears that articles of agreement were entered into, in the first instance, between the parties for the sale and purchase of the land, ye.t they were subsequently carried into execution by the vendee’s paying part of the purchase money and giving his bonds for the payment of the residue, and the vendor’s executing and delivering to him a deed of conveyance for the land with a covenant of special warranty. By the articles “ the defendants in error covenanted to deliver to the plaintiff in error, his heirs and assigns, a deed in fee-simple clear of all encum-. brances,” &c. It was said, in argument, on behalf of the plaintiff in error, that the articles of agreement still remained in force, notwithstanding the payment of part of the purchase money, and the giving of bonds by him for the residue thereof, and the execution and delivery of a deed conveying the land to him in fee-simple clear of all encumbrances, by the defendants in error. It appears to me, however, otherwise, for I am unable to discover anything contained in the articles, which was to be done and performed by either party, that has not been done; hence the articles can have no bearing whatever upon the case as it now stands. The articles contain no covenant upon the part of the vendors for further assurance, so that there is no ground for calling upon them to give to the vendee any other or further deed of conveyance or assurance than that which has been already received.
This being the state of the case, the question then presents itself, did the evidence offered by the plaintiff in error, and rejected by the court, tend to show an outstanding title for the land in a third person, better than that which he received from the defendants in error, and that such third person was actually claiming the land under it ? We think it very clear that it did not, and that it was therefore rightly rejected by the court. Indeed, I am inclined to think, that it is not even calculated to raise a doubt, as to the goodness of the title which the plaintiff in error received from the defendants. But it is said that it does not apply to, and embrace the land intended to be sold and purchased. The evidence, however, offered and rejected, does not. tend, in the slightest degree, to show that such was the fact, and therefore was not receivable for that purpose. Had evidence tending to prove that fact been offered in connection with the evidence that was rejected by the court, it might have raised a different question.
A question also arose, on the trial of this cause, as to the rate of interest that the plaintiffs were entitled to recover from the time that the bond became payable. It was dated the 1st of July [60]*601830, conditioned for the payment of 11143.75 on the 1st of April 1832, with three per cent, interest from the date thereof. The counsel of the defendant below contended that the plaintiffs, if entitled to recover at all, were only entitled to recover interest at the rate of 3 per cent., as that was the rate agreed to be paid according to the terms of the bond from its date to the time thereby fixed for the payment of the principal. The court, however, advised the jury to give 3 per cent, interest on the principal mentioned in the condition of the bond, until it became payable, according to the tenor thereof; and 6 per cent, from that to the time of trial; which they accordingly did. In this the court were perfectly correct. Until the bond became payable the agreement of the parties regulated the allowance of interest, and the rate of it, but after that the law interposed, not only to allow, but to •regulate the rate of interest that should be paid by the defendant or debtor for and on account of his illegal detention of the debt from the plaintiffs.
Whenever one man binds himself to pay a specific sum of money to another by a certain day, and he fails to do so, he becomes liable, by the law of this State, to pay interest thereon at the rate of 6 per cent, per annum, afterwards, as long as he shall improperly withhold payment thereof, unless, perhaps, it should be expressly agreed otherwise by the parties. But the agreement of the parties here, in respect to the interest, extended no further than to the period fixed for the payment of the debt or principal; after that it was left to mere operation of law, which allows 6 per cent.
Judgment affirmed.