delivered the opinion of the court, November 13th 1876.
This was a scire facias on a mortgage by the plaintiff in error, to the defendant in error, administrator of Samuel Bridge, Jr., to secure the payment of the sum of $3693.73 in two instalments, one falling due December 23d 1875, and the other .December 23d 1876, with interest. The mortgage contained a clause providing that in case default should be made in the payment of the principal sum or sums for the period of thirty days after the same should become due and payable, then the whole principal was to become due and be forthwith recoverable. The allegation of the plaintiff below was, that the instalment due December 23d 1875, was unpaid with interest, and he claimed to recover a judgment for the whole amount of the mortgage.
The defendant below filed an affidavit of defence in which he averred that the mortgage in suit was given to secure the balance of the purchase-money of the land, which was .sold at public sale made by order of the Orphans’ Court, at which sale it was announced, that the purchaser would take his title clear and discharged from the lien of a certain mortgage of record given by the decedent to Samuel Bridge; that on July 31st 1875, Samuel Bridge sued out a writ of scire facias, and said proceeding was pending on the 23d December 1875, when the first instalment fell due and continued pending until July 17th 1876, when it was discontinued ; that as soon as he was informed of the discontinuance, he tendered to the attorney of the plaintiff the amount of the instalment then due with interest, which was refused. The court below gave judgment for want of a sufficient affidavit of defence. In this we think there was error.
We have nothing on this record to show whether the mortgage to Samuel Bridge was or was not a valid lien on the premises. It is immaterial to the question, whether under the clause of the mortgage before referred to a forfeiture had been incurred, and the whole principal and interest had become due and immediately recoverable, whether it was or was not. The defendant here does not set up that mortgage as a subsisting valid encumbrance and a defence to the *518payment of the mortgage in suit. In that ease he would undoubtedly have to aver or show that it was a valid prior lien. He claims only that the pendency of legal proceedings on that mortgage excused the forfeiture which would otherwise have been incurred by non-payment of the first instalment. By the terms of the contract of sale under which he became the purchaser, as averred in the affidavit of defence, the plaintiff undertook to protect him from the mortgage of Samuel Bridge, and to indemnify him against any legal proceedings upon it. When that suit was instituted the plaintiff was bound to defend the title of his vendee, and pending the proceedings the plaintiff in error was not bound to pay the first instalment. Had the plaintiff below failed or neglected to defend his title, and judgment had gone against the premises, it would have been a valid defence pro tanto, and the claim of Samuel Bridge on his mortgage was for more than the amount of the first instalment. Under such circumstances a court of equity would certainly have relieved against the forfeiture, and equity is part of the law of Pennsylvania.
Judgment reversed and procedendo awarded.