Opinion,
Mr. Justice McCollum:The very ingenious argument of the able counsel for the appellant has failed to satisfy us that his present contention is equitable or sound. The primary purpose of the parties to the transaction disclosed in Sweetzer’s App., 71 Pa. 264, was to effect a loan on Sweetzer’s property for his benefit. It was plainly their intention that tbe property should be “a clear and unencumbered security” for the loan, and that Dodge should have a first mortgage upon it for the money advanced by him. This sufficiently appears from the claim of the ap.pellant in the case cited. It was said by this court, in that case, that the transaction put the Jifkinses “in Sweetzer’s stead, so far as the mortgaging of the property was concerned. It was Sweetzer’s debt that was secured by the Dodge mortgage, and it was his land that was pledged by his authority for its payment. Whatever title to this land remained in him after the sheriff’s sale was subject to the lien of this mortgage. It ffiound the fee.- It was not for him, after appropriating, in the manner agreed upon, the moneys secured by the mortgage, to allege that the mortgagee acquired nothing by it. In Sweetzer’s Appeal, supra, we enforced a parol agreement when its at- . tempted repudiation was a fraud upon the appellant, and we cannot allow him to perpetrate a like fraud by denying an obligation founded upon it. In this view of the case it is of no consequence whether the assignee of the mortgage had knowledge of his agreement with the Jifkinses concerning the occu*197pancy of the property and the appropriation of its rents. The reception by the latter of the profits arising from the possession and use of the property was not a payment on the mortgage. It was their duty to account for these according to the terms of their agreement with him. The right of action for a breach of that duty was not in the mortgagee or his assigns, but in the appellant, to whom they were bound to account. It is not pretended that the mortgage was paid before foreclosure, or that the judgment obtained in the suit upon it was greater than the sum due to the plaintiff therein. The appellant knew of this judgment, and moved the court to open it, on the grounds stated in his offers of evidence in this case. The motion was denied, and, rather than pay his own just debt, he allowed his property to be sold for it. The process throughout conformed to the instrument by which the property was pledged.
We are of opinion that the facts alleged in the rejected offers could not have constituted a defence to the suit upon the mortgage, and that they were irrelevant and immaterial in this issue.
The judgment is affirmed.