Statement of Facts. confirmed by the Orphans' Court aforesaid, and security approved and entered in the sum of $21,000. The conveyance to the said John Rice was made January 30, 1864, in consideration of the sum of $5500, "and under and subject to the payment of the mortgage debt or sum of $5000, with interest, made and executed by the said George W. Roberts to the Reliance Mutual Insurance Company, of Philadelphia, dated April 13, 1861, and recorded in mortgage-book A. C. H., No. 9, page 71, &c." This provision is made in the habendum of the deed, but not in the premises. On the fifth day of February, A.D. 1864, this conveyance was duly acknowledged before the Orphans' Court aforesaid. 3. On February 11, 1865, John Rice and wife conveyed the said premises to Sarah A. Jermon, in consideration of $8000, "under and subject to the payment of the said mortgage of $5000," held by the Reliance Insurance Company. 4. On June 5, 1867, the said mortgage of $5000 was duly assigned by the Reliance Insurance Company aforesaid to the defendants, who subsequently foreclosed the same by proceedings in the Supreme Court of Pennsylvania to July Term, 1867, No. 154. The action was brought against George W. Roberts, and judgment was duly obtained upon two returns of “nihil,” but after judgment, both the said Sarah A. Jermon and J. Wagner Jermon appeared and made several applications to open the judgment, which were refused. 5. On February 17, 1868, J. Wagner Jermon and Sarah Ann, his wife, filed a bill in equity in the Supreme Court for the Eastern District of Pennsylvania, to January Term, 1868, No. 60, averring that the defendants were creditors of J. Wagner Jermon, and were proceeding upon the mortgage for the purpose of realizing their claims against J. Wagner Jermon, and also averring that Sarah A. Jermon had caused a tender to be made of principal, interest, costs, &c., to the defendants, and requested them to execute an assignment of the mortgage prepared and presented to them, which they refused. Whereupon a decree was entered "that an injunction be granted as prayed for to restrain the sheriff's sale of the property mentioned and referred to in the bill, and that the said Statement of Facts. injunction do stand until the defendants, Lyon and Taylor, do execute an assignment of the bond and mortgage referred to in the bill, and a transfer of the suit brought upon the said mortgage, upon receiving payment of the debt and interest secured thereby, together with all costs, upon the execution of which assignment and transfer the said injunction shall be dissolved, &c.," which said decree was affirmed by the Supreme Court, February 23, 1869, and a procedendo awarded. On April 3, 1869, the Supreme Court aforesaid decreed that the injunction should be dissolved, and the defendants hereto should be at liberty to proceed upon their said mortgage, unless the said J. Wagner Jermon or Sarah A. Jermon should pay the same before the 20th of April, 1869. On April 20, 1869, the time was, upon the application of J. Wagner Jermon, extended to May 10, 1869. No payment or tender was made on or before May 10, 1869. 6. On September 18, 1869, a levari facias was issued in the action to foreclose the mortgage, wherein the premises were described as three properties, viz: Lot No. 1. S. E. corner of Broad and Oxford streets, fortyeight feet on Broad street by one hundred and eleven feet on Oxford street. Lot No. 2. South side Oxford street one hundred and eleven feet east of Broad street, sixteen by forty-eight feet. Lot No. 3. South side Oxford street one hundred and twenty-seven feet east of Broad street, sixteen by forty-eight feet. Lot numbered 1 was purchased by the defendants at the sheriff's sale, made October 4, 1869, for the sum of $10,000; and No. 2 was purchased at the same sale, by the defendants, for the sum of $2000. The sheriff's return to the writ of levari facias was, inter alia, "and it appearing that the plaintiffs in the writ are entitled to be paid the sum of $57484, being the amount of principal and interest to day of sale of the mortgaged premises sued on this case, I have taken their receipt for the same, and balance of purchase money I have as within commanded." On December 4, 1869, the sheriff's deed for the premises Argument for Plaintiff in Error. Nos. 1 and 2 was duly acknowledged and delivered to the said defendants. No disposition was made of lot No. 3. 7. As to lot No. 3: By virtue of certain proceedings in the District Court of Philadelphia County, of December Term, 1866, No. 1421, the premises situate on the south side of Oxford street, one hundred and twenty-seven feet east of Broad street, sixteen feet by forty-eight feet, were exposed to sheriff's sale on January 3, 1870, upon a venditioni exponas, issued December 3, 1869, under a judgment obtained by W. A. Arnold against J. Wagner Jermon and Sarah A. Jermon, his wife. The first count of the narr. filed in this action was for materials furnished to the said premises at the request of said Sarah A. Jermon. The second count was for materials furnished at the request of J. Wagner Jermon and Sarah A. Jermon, and the judgment was confessed in open court. At the sale the premises were purchased by defendant, and on January 22, 1870, the sheriff's deed therefor was duly acknowledged and delivered to defendants. 8. That on the 3d July, A.D. 1872, an ejectment was brought in the Supreme Court of Pennsylvania, sitting at nisi prius to July Term, 1872, No. 130, by J. Wagner Jermon and Sarah A. Jermon against these defendants, wherein a verdict was rendered for these defendants, and on March 6, 1876, this was affirmed by the Supreme Court of Pennsylvania sitting in banc. 9. On March 7, 1876, Sarah A. Jermon, wife of J. Wagner Jermon, conveyed the premises in dispute to William L. Gibson, a citizen of the State of New Jersey, for the consideration of five hundred dollars. This conveyance purports to be made by Sarah A. Jermon alone. J. Wagner Jermon joined in the covenants, and both she and her husband signed and sealed the deed, and it was separately acknowledged. Mr. David C. Harrington [Mr. J. Carroll Brewster and Mr. George W. Biddle were with him] for plaintiff in error, cited Lyon's Appeal, 61 Penn. St. 15; Brewer v. Fleming, 51 Penn. St. 102; Gilbert v. Hoffman, 2 Watts, 66; Mevey's Appeal, 4 Penn. St. 80; Quinn's Appeal, 86 Penn. St. 447; Opinion of the Court. Menges v. Oyster, 4 W. & S. 20; Cadmus v. Jackson, 52 Penn. St. 295, 303; McLanahan v. McLanahan, 1 Penn. 96; Bowers v. Oyster, 3 Penn. 239; Mode's Appeal, 6 W. & S. 280; Kinley v. Hill, 4 W. & S. 426; Anderson v. Neff, 11 S. & R. 208; Maule v. Weaver, 7 Penn. St. 329; Shoenberger v. Hay, 40 Penn. St. 132; Samms v. Alexander, 3 Yeates, 268; Fetterman v. Murphy, 4 Watts, 424; Hoffman v. Shohecker, 7 Watts, 86; Caldwell v. Walters, 18 Penn. St. 79; Swayne v. Lyon, 67 Penn. St. 436; Parke v. Kleeber, 37 Penn. St. 251; Finley's Appeal, 67 Penn. St. 453; Keiper v. Helfricher, 42 Penn. St. 325; Steinman v. Ewing, 43 Penn. St. 63; Hecker v. Haak, 88 Penn. St. 238; Hugus v. Dithridge Glass Co., 96 Penn. St. 160; Gilmore v. Rodgers, 41 Penn. St. 120; Dixey v. Laning, 49 Penn. St. 143; Leedom v. Lombeart, 80 Penn. St. 381; Lockhart v. John, 7 Penn. St. 137; West v. Cockran, 104 Penn. St. 482; Gardner v. Sisk, 54 Penn. St. 506; Simons v. Kern, 92 Penn. St. 455; Girard Life Ins. Co. v. Farmers' & Mechanics' Bank, 59 Penn. St. 388; Thompson v. Lorein, 82 Penn. St. 432. Mr. William Henry Rawle for defendants in error. MR. JUSTICE MATTHEWS delivered the opinion of the court. After stating the facts in the language above reported, he continued: Before proceeding to consider this case, as presented by the findings of fact, it is necessary to dispose of an assignment of error based on a ruling of the Circuit Court during the progress of the trial. It appears from a bill of exceptions that “the plaintiff offered to prove that a tender of the money, under decree of the Supreme Court of Pennsylvania, in suit No. 60, January term, 1868, was made about the end of May, 1869, by Charles H. Muirhead; that the assignment was returned from Lyon and Taylor executed in blank; that said C. H. Muirhead required that an assignment of said mortgage, with the blanks filled in, should be signed by said Lyon and Taylor; that A. V. Parsons, Esq., representing the parties, Lyon and Taylor, agreed to procure the assignment so com Opinion of the Court. pleted, but that such an assignment was not made, and the parties, Lyon and Taylor, absolutely refused to make the assignment and receive the money. Counsel, on being asked, say that the money was ready, but was not actually shown Lyon and Taylor, or their attorney, and aver that an actual tender was not necessary under the refusal of Lyon and Taylor to take the money and make the assignment." It will be observed that the tender referred to in this offer was not made by the party obliged to pay the debt or entitled to do so, for the purpose of removing the encumbrance of the mortgage upon the property, nor in payment of the mortgage debt, and in satisfaction of the mortgage and the judgment rendered thereon, but was an offer made by a stranger to pay the amount due on account thereof, accompanied with a demand to execute an assignment to a named third party of the debt and securities, compliance with which was a condition of the offer of payment. If accepted, the effect would have been to transfer the debt and mortgage and judgment rendered thereon to an assignee, and not to extinguish it. This the plaintiffs were under no legal obligation to do, neither by contract, nor by the terms of the decree referred to, inasmuch as the time within which such payment might be made for that purpose was limited by the decree to May 10, 1869. After that they were expressly left at liberty by the decree itself to proceed, at law, upon the mortgage and judgment previously rendered thereon. This question being removed from the controversy, it is urged by counsel for defendants in error, that the judgment of the Supreme Court of Pennsylvania in the ejectment in favor of the defendants against the immediate grantors of the present plaintiff below, referred to in the eighth finding of fact, if not entitled to the force of an estoppel as res judicata, is at least an authoritative decision of the highest court of the State upon the law of the case, which, as it involves only questions of title to real estate within its territory dependent on its local jurisprudence, ought to furnish the obligatory rule of decision for the courts of the United States. The former judgment in ejectment is not a bar to the present action, according to the law of Pennsylvania, where the subject |