The opinion of the Court was delivered by
Lowrie, J.Johnson, in 1837, gave this mortgage to Abell, without warranty and without any bonds. In 1840, he re-leased the land to Reed, and in 1847, on a sci. fa. issued on the mortgage naming Johnson as defendant, Reed appears, shows his title, and has himself substituted as defendant in place of Johnson. On the trial, Johnson was admitted as a witness to prove that the mortgage had been paid before the conveyance to Reed; and the exception to this is the only one requiring any special notice.
Certainly it does not appear that Johnson was interested, and his release to the plaintiff for costs, filed on the trial, was unnecessary, and would have been fruitless if he was interested. That he was a party to the mortgage does not affect his competency, for that rule does not apply to such an instrument, nor to evidence in discharge of any instrument and not affecting its original validity. He is no party to the suit, though originally named upon the record, for this action is in rem, and not in personam. After the true owner was substituted he ceased to be even a formal party. After he released his title to the land he was incapable of acting as a real party, for the action was against the land, in which he had no interest; and an appearance and. defence by him could entitle him to no costs, for he had no right to appear. He was liable as a party while his title to the land or some interest in defending it continued, but no longer.
On this point there is no difference in principle between this case and Holden v. Winslow, which was argued a few days after this one. That was a sci. fa. on a mechanic’s lien, where one, who had been a terre-tenant, and was served with notice, was admitted as a witness for the defendant.
The objection to Haughton’s deposition is plainly unfounded.
Judgment affirmed.