The opinion of the court was delivered,
by Thompson, J.— There was no error in permitting the amendment in this case: see Rangler v. Hummell, 1 Wright 130, and authorities there cited.
The plea of covenants performed absque hoe, undoubtedly put the plaintiffs upon showing performance on their part, and they did so by showing, that they had put the defendant into possession of the premises they had agreed to sell him. This was all they were bound to do, until payment of purchase-money. The plea called on the plaintiffs for nothing more, and this was shown. It did not put in issue the plaintiffs’ title.
But the defendant further pleaded, that the plaintiffs had no title to the premises to sell. We will not stop to inquire as to the validity of this plea under this contract, but will notice the proof to sustain it. He exhibited a purchase by himself at Orphans’ Court sale, of the tract of land out of which the leasehold interest sold by the plaintiffs to him had been carved. But the very petition which prayed for the sale, asked for it, with a reservation of the privileges which he held under the agreement of sale from the plaintiffs. Of this petition, it being the foundation of his title, he would be bound to take notice. This was certainly not a paramount title to that of the plaintiffs, so far as it now appears, and therefore not an available outstanding title, to which he would have been bound to surrender, and could not avail as a defence.
It seems pretty clear, that the defendant failed to show any such defect of title as would justify his retaining the purchase-money against his covenant to pay it before conveyance, and we must affirm his judgment.
Judgment affirmed.