Hepburn cannot be considered as landlord. If he had even received the profits of the estate, he could not be made a co-defendant at the time of trial without consent. He has slipped his time and should have applied earlier. To admit him now would be a surprise on the plaintiff.
In general, a defendant in ejectment may show the title out *328of tbs plaintiff, (Hob. 103, 104. Vaugh. 7, 8, 58, 60. 1 Mod. 278. 2 Ld. Ray. 1293. 4 Burr. 2487. 2 Term Rep. 749) add thereby preclude him from recovery. But to this rule there are exceptions ; as the case put between mortgagor and mortgagee. So between landlord and tenant, (2 Show. 126) and one suing on a mere jus• possessionis against a trespassser without claim of title. (Vaugh. 299. Cro. El. 322, 438. Cro. Jac. 437. 1 Wills. 72, 272. 2 Wils. 338. 339.) The title of a trustee in ejectment, shall not be set up against cestui que trust. (3 Burr. 1901.) No defendant shall shelter himself under a conveyance from himself to a third person not made party to the record', on legal principles.
But the analogy of this case to a bill in equity for a specific execution of articles,' forms the most important consideration. It is true, the plaintiff could not make Hepburn a co-defendant, unless he was in possession of the premises ; and that 9, demurrer would lie against'a bill in equity, where there were not the proper parties. (Mitf. Pract. 144, 145.) In some such cases, the chancellor has permitted a plaintiff to amend his bill. 2 Cha. Ca. 197. 2 Eq. Ca. Abr. 170.
Had Diermond sued for relief in Chancery, and Morrison in his answer had stated, that Diermond had trifled and shown backwardness in performing his part of the contract, so that Morrison had been compelled to sell the premises to another person, such second sale would indubitably be taken into consideration with all its circumstances, by a court of equity. • If it was a bona fide transaction for a valuable consideration, without notice either express or implied, the Lord Chancellor would not impeach it; but with such notice, the second purchaser would be considered as a trustee for the first contractor.
Considering the conveyance in this equitable point of view, the court are of opinion, that the deed should be received in evidence, and it was read accordingly.
But express notice was afterwards proved to have been given to Hepburn before he made the purchase.
When the evidence was closed, the defence was grounded un the laches and backwardness of Diermond, in not paying the whole consideration money; and it was contended, that Morrison was under no legal obligation to give him a bond of indemnity.
But the court in their charge to the jury declared, that it would be highly unreasonable to expect that Diermond should go on with completing the purchase, while the appeals were depending from the proceedings in the Orphan’s Court which might eventually annul the confirmation of the lands to Morrison. He ought to be secured when he *329paid his money. Moreover, the parties by their counsel mutually validated the articles in July 1794, at ther appointed meeting.
Messrs. Duncan, Walker and Wallace, pro quer. Messrs Xngersoll, 0. Smith and Hall, pro def.Bonham’s demand against the estate of John Walker was not then regularly adjusted. Three judgments stood against the same estate apparently unsatisfied; several judgments stood against four of the children, the amount whereof could not then be ascertained.
The balance duo to the administrators, and Bonham’s debt, were entitled to preference in payment, and the shares of the several children in the appraisement moneys must necessarily be diminished in proportion thereto. The liens of the respective judgment creditors against the different children, must also be deducted from their purparts. Under these circumstances, none of the children would be entitled to their shares of the valuation, unless they gave refunding bonds. The Orphan’s Court had refused to receive the money tendered by Diermond and make the appropriation. This work he could not himself perform, but he was willing to pay tho residue of the valuation money if he received an indemnity, which was in effect a refunding bond. Express notice of the previous articles of agreement has been traced to Hepburn before he made his contract, consequently he can claim no superior equity, but rests in the same situation with Morrison. If therefore Diermond has lodged in court the full sum still remaining due on his contract, this is such a case as chancery would refer the distribution of the money to a master, and decree the specific execution of the agreement, and the plaintiff would be entitled to recover.
Verdict for the plaintiff.