got this tobacco yet? A. No. Q. Have you sold it?" Objected to by the defendant and refused because it was not cross-examination. The defendant had, therefore, put it out of her power to respond in an action against her for the recovery of the goods themselves. It is true that it does not appear when she parted with possession of the tobacco. It was sufficient, however, for the plaintiff to show that she did not have it, to entitle him to recover in this form of action. Having shown that it was not in her possession, the burden was thrown upon her to show that it was in her possession at the time this suit was commenced. It is true, as urged by counsel for the defendant, that demand was made for the division of the tobacco on June 11, 1919, by the plaintiff, but it does not appear that the tobacco was then in possession of the defendant. We are satisfied that the plaintiff is entitled to recover, and therefore discharge the rule to show cause why the judgment should not be entered for the defendant n. o. v. Both rules discharged. BUTTERWECK TO USE v. DIEFENDERFER. Mortgage-Standing on Assignee-Set-off By Mortgagor— Judgment of Accompanying Bond-Opening of Judgment. The assignee of a mortgage takes it subject to the equities of the mortgagor. The assignee of a mortgage, without taking a declaration of no set-off, or making inquiries of the mortgagor as to conditions in way of payment, takes the mortgage subject to any equities between the original parties. Where the interest was regularly paid to the mortgagee, and also part of the principal, the mortgagor having no actual knowledge of the assignment of the bond and mortgage, until the second assignment, the interest and part of the principal being still thereafter paid to the mortgagee, and the mortgagors not being requested nor making any acknowledgment, either verbally or in writing, of a declaration of no set-off to either of the assignees of the judgment bond and mortgage, the court will open the judgment entered on the bond accompanying the mortgage, and let the defendant into a defense. In the Court of Common Pleas of Lehigh County. No. 269 January Term, 1921. Harry A. Butterweck, to the use of Monroe Knauss, and now to the use of Emma Wilson v. Ida Diefenderfer and Edwin B. Diefenderfer. Rule to open judgment entered on Bond and Warrant accompanying mortgage. Rule absolute. Issue to be framed. Fred E. Lewis, for Use Plaintiff. Henninger, J., June 6, 1921. This is an application on the part of the plaintiffs to open the judgment entered to the above number and term in the Prothonotary's Office of the Court of Common Pleas of Lehigh County, Pa., by the plaintiff and against the defendants and let them into a defence. The rule on the plaintiff to show cause was entered by the court on April 4, 1921. It appears by admissions in the proceedings in the case that the use plaintiff, Emma Wilson, died before the return day of the rule and that her last will and testament was probated in the Register's Office of Lehigh County on April 9, 1921, and letters testamentary on her estate granted to Thomas J. Wilson, her husband, the executor named in her will, and to whom was devised the whole of her estate absolutely. The answer of the plaintiff to the petition of the defendants on which the rule was granted was made by Fred E. Lewis, Esq., for and in behalf of the plaintiff and Thomas Wilson, executor and sole legatee of the estate of Emma C. Wilson, deceased. From the petition and answer, the deposition and the records offered in evidence, the court finds the following material facts in the disposition of the matter in controversy to wit: First: That prior to June 9, 1916, Harry A. Butterweck, the legal plaintiff mentioned in the above judgment, was the owner of the messuage, tenement and lot of ground and known and designated as No. 11371⁄2 Liberty Street of the City of Allentown, County of Lehigh and State of Pennsylvania. That on June 9, 1916, the said Harry A. Butterweck signed, executed and delivered a bond accompanied by a mortgage on the said messuage No. 11372 Liberty Street, Allentown, Penna., to David S. Berk for the payment of the sum of twentyfive hundred ($2500) dollars and interest at the rate of six (6%) per annum. That the said mortgage on the same day was recorded in the Recorder's Office in and for the County of Lehigh at Allentown in mortgage book Vol. 206, page 289, etc. That the interest on the aforesaid bond accompanied by the aforesaid mortgage was paid by Harry A. Butterweck to the agent of the mortgagee up to December 9, 1920. That the whole of the principal of the bond accompanied by the said mortgage is due and unpaid together with interest at the rate of six per centum per annum from December 9, 1920. Second: That on May 3, 1917, the said Harry A. Butterweck by deed did grant, bargain and sell unto Ida Diefenderfer wife of Edwin B. Diefenderfer the said messuage No. 11371⁄2 Liberty Street for the consideration as mentioned in the indenture of four thousand ($4000) dollars, which said deed was recorded in the Recorder's Office of Lehigh County at Allentown in deed book, Vol. 308, page 92, etc., and entered therein on May 8, 1917. That on the same date of the execution of the aforesaid deed, to wit, May 3, 1917, the said Ida Diefenderfer and Edwin B. Diefenderfer, her husband, signed, sealed and executed a bond with a warrant of attorney to confess judgment in favor of Harry A. Butterweck, aforesaid, for the sum of thirty-four hundred ($3400) dollars conditioned for the payment of the sum of seventeen hundred ($1700) dollars at the expiration of one year from the date thereof with interest at the rate of five and onehalf per centum per annum payable semi-annually. The bond in its other contents shows that it was accompanied by an indenture of mortgage. By virtue of the warrant of attorney to confess judgment, the same was entered as a judgment against Ida Diefenderfer and Edwin B. Diefenderfer the defendants in the Prothonotary's Office in the Court of Common Pleas of Lehigh County to No. 269 January term, 1921, on January 20, 1921, in favor of Harry A. Butterweck to use of Monroe Knauss now to use of Emma Wilson. This is the judgment on which the application is made by the defendants to the court to open and to be permitted to defend. Third: On the same day, to wit: May 3, 1917, Ida Diefenderfer and Edwin B. Diefenderfer signed, sealed and executed a mortgage to Harry A. Butterweck on the said messuage No. 11371⁄2 Liberty Street wherein inter alia the aforesaid bond mentioned in finding 2 is recited as follows, to wit: "Whereas the said mortgager in and by their obligation or writing obligatory under their hand and seal duly executed, bearing even date herewith stand bound unto the said mortgagee in the sum of thirty-four hundred ($3400) dollars lawful money of the United States of America conditioned for the payment of the just sum of seventeen hundred ($1700) dollars lawful money aforesaid at the expiration of one year from date thereof together with interest thereon payable semi-annually at the rate of 52 per cent per annum, etc." as Fourth: "That the mortgage accompanying the said bond dated May 3, 1917, signed, sealed and executed as aforesaid by Ida Diefenderfer and Edwin B. Diefenderfer, her husband, in favor of Harry A. Butterweck on the messuage No. 11371⁄2 Liberty Street, was entered in the Recorder's Office in and for Lehigh County at Allentown on the same day that the deed for the said premises from Harry A. Buttrweck to the said Ida Diefenderfer was entered, to wit: on May 8, 1917, and is recorded in mortgage book Vol. 217, page 231, etc. That the said bond with a warrant to confess judgment and entered to No. 269 January Term 1921, of the Court of Common Pleas of Lehigh County, and the mortgage aforesaid recorded in mortgage book Vol. 217, page 231, etc., are one and the same indebtedness and the said securities in the nature of a lien of judgment and mortgage were given, executed and delivered by the said Ida Diefenderfer and Edwin B. Diefenderfer, her husband, in part payment of the purchase price for the said messuage No. 11371⁄2 Liberty Street by deed granted, bargained and sold by said Harry A. Butterweck to said Ida Diefenderfer, wife of Edwin B. Diefenderfer. Fifth: That the said bond and mortgage of Ida Diefenderfer and Edwin B. Diefenderfer to Harry A. Butterweek were assgined by the Harry A. Butterweck to Monroe Knauss by indenture of assignment dated May 8. 1917; said indenture was entered in the Recorder's Office of Lehigh County at Allentown on May 8, 1917, and is recorded in Misc. Docket Vol. 76 page 221, etc. The same were assigned by Monroe Knauss to Emma Wilson by indenture of assignment dated January 14, 1920; said indenture was entered in the Recorder's Office of Lehigh County at Allentown on January 14, 1920, and is recorded in Misc. Docket Vol. 86, page 405, etc. That Ida Diefenderfer and Edwin B. Diefenderfer the mortgagors had no actual knowledge of the assignment of the bond and mortgage until the assignment to Emma Wilson in January, 1920. The interest was regularly paid by the mortgagors to Harry A. Butterweck and in addition at the time of the assignment to Emma Wilson payments had been paid to Harry A. Butterweck by the mortgagor on the principal of the mortgage as follows, to wit: That after the assignment of the bond and mortgage the interest was regularly paid by the mortgagors to Harry A. Butterweck up to November 3, 1920 and on the principal of the mortgage as follows to wit: April 30, 1920 ... .$125.00 125.00 .$250.00 Total The counsel for the parties placed on record in the depositions the following agreement as to the payments of principal and interest paid by the mortgagor to Harry A. Butterweck since the assignment of the bond and mortgage to Emma Wilson to wit: "Counsel agree that the last $125 paid by Ida Diefenderfer to Harry A. Butterweck was not turned over by the latter to Emma Wilson and also that the interest paid by Ida Diefenderfer to Harry A. Butterweck for the period from May 3, 1920, to November 3, 1920, was not turned over by Harry A. Butterweck to Emma Wil Sixth: That Ida Diefenderfer and her husband Edwin B. Diefenderfer, the obligors and mortgagors, were not asked or requested nor did they make an acknowledgement, either verbally or in writing of a declaration of no set off to either of the assignees of the judgment bond and mortgage. Seventh: It is not proved in this matter and it is not material to the decision, but by inference and as a |