No. 198 October Term 1891, Sup. Ct.; court below, No. 600 July Term 1888, C. P. No. 2.

To the first Monday of July, 1888, Benjamin Coursin brought ejectment against John Shrader, for a lot of ground in Lincoln, late Elizabeth township. Issue.

At the trial, on December 1, 1890, it was made to appear that, on April 1,1872, Frederick Rhodes, having title to the lot in dispute, executed and delivered to Benjamin Coursin, the plaintiff herein, guardian of the minor children of David H. Rhodes, deceased, a mortgage thereon for $2,695. This mortgage was doubtless duly recorded; but, as the abstracts of title were not furnished in the paper-books, the date of recording was not found. In 1884, William Shrader purchased the lot in dispute at sheriff’s sale as the property of Frederick Rhodes, received the sheriff’s deed therefor, took possession, and afterwards demised the lot to his son John Shrader, the defendant, in possession as a tenant thereof. To No. 477 June Term 1887, Coursin issued a scire facias on his mortgage, without giving notice to William Shrader or the defendant, and on May 5, 1887, obtained judgment by confession for $4,262.28. By a writ of levari facias from said judgment, No. 126 June Term 1887, the lot in dispute was sold to the plaintiff, who subsequently brought this action.

The defendant, with other evidence adduced to show that at the date of the sheriff’s sale on the levari facias, the plaintiff’s mortgage was fully paid and therefore the plaintiff had no title, offered in evidence a receipt dated December 7, 1877, purporting to be signed by the plaintiff, setting forth: “ Received from F. Rhodes a note for $671.43, and when said note is paid I will satisfy guardian mortgage.” With evidence that the signature of the plaintiff to the receipt was genuine, which was not admitted, the receipt was given in evidence by the defendant, and in .connection with it the note referred to therein. The note, of the same date and amount as the receipt, had been discounted in bank for Rhodes, and the proceeds placed to his credit. It was renewed several times, and finally paid by Mr. Coursin, the plaintiff, and the notes turned over to Rhodes, who, as appeared, gave the original with other papers to William Shrader.

But, as claimed further by defendant from the evidence, Mr. Coursin, the plaintiff, on January 2, 1883, had entered a judgment against Frederick Rhodes and S. O. Rhodes for $2,626.56. This judgment, on May 8, 1885, was assigned by the plaintiff to F. Rhodes, Sr., father of Frederick Rhodes. And William Shrader testified that, prior to the sheriff’s sale to him in 1884, the plaintiff told him that all the notes he held on Frederick Rhodes were included in that judgment. Both Coursin and Rhodes, however, testified that said judgment had nothing to do with the consideration of the mortgage, and that the note had never been paid, nor was it included in the judgment.

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