The opinion of the court was delivered, May 8th 1871, by
Williams, J.— This was an ejectment to enforce the payment of the purchase-money charged upon the premises described in the writ. By articles of agreement dated December 1st 1860, the plaintiff sold his interest in the firm of Rhodes & Yerner, includ*444ing the property in question, to his copartner, Joshua Rhodes, for the sum of $41,000, payable as follows: $1000 in hand and the residue in instalments of $5000 each, on the 1st day of July in each year from 1862 to 1869 inclusive, with interest thereon from the 1st of January 1861, at the rate of 8 per cent, per annum, payable every three months. In accordance with the provisions of the contract, Rhodes gave the plaintiff his promissory notes for the principal and interest, payable as the same became due, and his bond with power of attorney to confess judgment against him, in case of his failure to pay any one of the notes for principal or interest at maturity, for the whole amount of the notes then unpaid, whether due or not, and to issue execution therefor, with costs and attorney’s commissions.
On the 1st of September 1866 he sold the premises in controversy to the defendant, Carson, and entered into an agreement with him, in which, after reciting that “whereas James D. Yerner has a claim or lien against said property for the sum of $15,000,” he covenanted to procure, at his own expense, a quitclaim, deed or release from the said Yerner before the final payments were made by the said Oarson on account of the purchase of the said property. But there was no evidence showing at what price he sold the property, nor whether Carson had paid him any part of it.
Rhodes paid all the notes for principal and interest maturing prior to the 1st of January 1869. But he failed to pay the interest note for $100, which fell due at that date, and on the 6th of January the plaintiff caused judgment to be entered on the bond against him for $5565, being the amount of the notes then unpaid with attorney’s commissions thereon. On the 18th of January 1869 he brought this ejectment against Carson and Miller, to enforce payment of the amount of the purchase-money for which he had obtained judgment against Rhodes. On the trial of the case the defendants contended that if the plaintiff was entitled to a conditional verdict, to be released on payment of the unpaid purchase-money, he was not entitled to include in his claim the two interest notes made payable on the 1st of April and 1st of July 1869, and attorney’s commissions; and that they had the right to set off the excess over the legal rate of interest included in the interest notes previously paid by Rhodes. Under the instructions of the court, the jury found for the plaintiff the undivided half of the premises described in the writ, with six cents damages, &c., to be released on payment of $5802.50 (or such less sum as judgment may be entered for by the court on the questions of law reserved) within nine months, with interest from date, subject to the opinion of the court on the following questions of law reserved:—
1. Whether the plaintiff is entitled to recover the three interest *445notes of $100 each, due respectively January 1st 1869, April 1st 1869, and July 1st 1869, and attorney’s commissions of 5 per cent., amounting to $200, or any part thereof; and if so, how much ?
2. Whether the defendants are entitled to set off the amount of interest paid by Joshua Rhodes in excess of six per cent., amounting, without interest, to $3325, and with interest on each payment computed to the date of the verdict, to $4416.53; and if they are entitled to.set off said payments in excess of legal interest, whether with or without interest thereon. ‘
On the hearing of the reserved questions the court decided that the plaintiff was not entitled to recover the two interest notes payable on the 1st of April and the 1st of July 1864, for $100 each; that the defendants were entitled to set off the excess over the legal rate of interest paid by Rhodes ; and that the plaintiff was entitled to 5 per cent, attorney’s commissions on the amount due at the date of the verdict. The court accordingly directed judgment to be entered on the verdict in favor of the plaintiff, to be released on payment of $1245.47, with interest and costs, within the time specified in the verdict, &c.
The plaintiff excepted to the opinion of the court, and has assigned for error its rulings on the reserved questions.
The main question presented by the assignment is, whether the defendants are entitled to set off the amount of interest in excess of 6 per cent, included in the interest notes paid by Rhodes ?
' The paper-books do not furnish us with the evidence given on the trial, but it appears from the plaintiff’s history of the case and from the charge of the court, that in default of payment of the interest note due January 1st 1869 judgment was entered in favor of the plaintiff against Rhodes, on the 6th of January 1869, for the amount of the notes then remaining unpaid, and the sum due was liquidated at $5565. This judgment was binding and conclusive on the parties until reversed or set aside. It could not be collaterally impeached or avoided by Rhodes except on the ground of fraud. If it was conclusive upon him, it was equally conclusive upon the defendants in this action. They could not go behind it and inquire into its consideration, or question its validity. It is not pretended that it was fraudulently or collusively confessed by Rhodes to their prejudice. It could not have been, for Carson bought the property with nptice of the plaintiff’s lien and with Rhodes’s covenant to procure its release; and so far as appears, he has never paid any part of the purchase-money. Having the right to withhold its payment, the presumption is that his indebtedness to Rhodes exceeds the amount of the plaintiff’s judgment. But whether this be so or not, the judgment was conclusive of the amount due the plaintiff, and estopped the defendants from claiming a deduction of the two interest notes, or the excess of interest included in the notes previously paid by Rhodes: *446Hauer’s Appeal, 5 W. & S. 473; Drexel’s Appeal, 6 Barr 272; Dickerson’s Appeal, 7 Barr 257; Watson v. Willard, 9 Id. 89; Lewis v. Rogers, 4 Harris 21; Buehler v. Buffington, 7 Wright 278. But if the defendants were not estopped by the judgment, they have no such equity as entitles them to go behind it in order to contest the amount of the plaintiff’s claim. It was not confessed to their prejudice, and it can do them no possible harm. So far as it respects their rights, it is immaterial whether the purchase-money in the hands, of Carson is pajd directly to Rhodes or applied to the satisfaction of the plaintiff’s judgment. If Rhodes does not object to the judgment, it is clear that the defendants have no right in law or equity to make any defence to it whatever.
This view of the case renders it unnecessary to determine whether, under the provisions of the Act of 1858, any other than the borrower or debtor can set up the defence of usury, and at his option retain and deduct the excess of interest over the legal rate contracted for or paid by the borrower or debtor, from the amount of the debt sought to be recovered.
And now, May 8th 1871, it is ordered and adjudged that the judgment of the Court of Common Pleas in this case be and the same is hereby reversed; and it is further ordered, adjudged and decreed that judgment be now entered on the verdict in favor of the plaintiff, for the undivided half of the premises described in the writ, with six cents damages, &c., to be released on payment of $5802.50, with interest from the 3d day of December 1869, within three months from this date, and upon execution and delivery by the plaintiff of a good and sufficient deed for all his right, title and interest in the said premises.