insured brought him within either of the excep- [plied to the judgments against Joseph Zuver. tions, so as to relieve the company from liability. The exchange of deeds did not take place until We discover no merit in the seventh specifica- March 30, 1857. At this date the liens against tion of error. The others are substantially sus-Joseph Zuver's property amounted to $891.71. These were paid by McCready, and the difference ($358.29) secured by a note drawn by McCready in favor of Mrs. Nancy Zuver.

tained.

Judgment reversed, and judgment in favor of the plaintiff for $3000, with interest thereon, from the commencement of the suit, and costs. Opinion by MERCUR, C. J. W. M. S. Jr.

Oct. & Nov. '83, 114.

Ejectment.

Zuver v. Clark.

The deed for the property in dispute was made and delivered by McCready to the defendant Nancy Zuver, wife of Joseph Zuver. Samuel Zuver, brother of Joseph Zuver, knew of this arrangement, recommended it, and was the subscribing witness to both deeds; although it was October 8, 1883 claimed there was no evidence that he knew the deed was made to Nancy Zuver.

Fraudulent conveyances-Sheriff's sale-Waiver of inquisition-Evidence.

A conveyance of land in fraud of creditors of the gran: tor vests in the grantee a good title as to the grantor and all persons except those defrauded. Lien creditors of the grantor at the date of such conveyance, and other creditors who know of, assent to, and recommend such conveyance are not defrauded thereby.

A sheriff's sale of the land under a judgment obtained by a defrauded creditor subsequent to the fraudulent conveyance passes the debtor's title, subject to prior liens, unaffected by the fraudulent conveyance. The purchaser

at such sheriff's sale must, however, pursue his legal remedy, impeach the conveyance, and show a valid title as against the grantee; he cannot treat such conveyance as a nullity.

In ejectment by a purchaser at such sheriff's sale against the fraudulent grantee, parol evidence is admissible on behalf of the defendant to show that an indorsement on the writ of fi. fa., under which the sheriff's sale was had, waiving inquisition, was a forgery, by reason whereof the sheriff's sale under said fi. fa. was void, and the plaintiff

acquired no title whatever.

Where a witness is incompetent to testify as to some matters and competent as to others, the objection must point to the matters to which he is incompetent to testify A party, against whom a conveyance is not fraudulent, cannot impeach the conveyance, although fraudulent as to other persons.

Error to the Common Pleas of Lawrence County.

In addition to the judgments against Joseph Zuver, he also owed two notes, upon which Samuel Zuver was surety, amounting to $250, and some other debts. On the same day the deeds were executed, March 30, 1857, Joseph Zuver and Nancy Zuver executed and delivered to Samuel Zuver their bond, with warrant of attorney, etc., in the sum of $250, conditioned to indemnify Samuel Zuver against the payment of these two notes, upon which Samuel was surety. Nancy Zuver denied the genuineness of her signature. Samuel Zuver, acting for Joseph in his absence, sold Joseph's personal property, and took notes from the purchasers; Samuel also receipted to Joseph for $159, to apply on the notes.

On January 19, 1858, Samuel Zuver caused judgment to be entered on said bond, issued a fi. fa., upon which the sheriff sold the property in dispute, Samuel Zuver being the purchaser, and the proceeds were applied to his own judgment. On the writ of fi. fa. was indorsed a waiver of inquisition, etc. etc., signed by Joseph Zuver Samuel Zuver took possession under this sale, and and Nancy Zuver, dated November 4, 1858. his title became vested in Elizabeth Clark, the plaintiff. Joseph Zuver and family moved away in 1859, and returned in 1880 or 1881. They took possession of the property, and Mrs. Clark brought this action of ejectment. Samuel Zuver died before the bringing of this suit and Joseph died after suit was brought.

Ejectment, by Elizabeth Clark against Joseph Plaintiff offered in evidence the fi. fa., with Zuver and Nancy Zuver his wife, to recover waiver indorsed. Objected to by defendant, possession of a lot of ground in New Wilming-that the waiver was a forgery apparent on its face, ton, Lawrence County. Plea, not guilty. On the Zuvers' names being wrongfully spelled; and the trial, title to the premises in question was ad- that Joseph Zuver could not waive inquisition as mitted in D. F. McCready, prior to 1855. It against his wife, the judgment being void as to appeared that Joseph Zuver, prior to 1855, lived her. By the COURT: "The Court decide to conin New Wilmington, and owned some property.sider that Nancy Zuver was a married woman, and Becoming involved, he agreed with D. F. Mc- the wife of Joseph Zuver; that the bond on which Cready, in 1855, to exchange his property for judgment was entered and property sold, and all the lot in dispute, which was valued at $700. proceedings as to her were void; and to receive There was also to be paid by McCready $1250 the evidence offered so as to affect title in Joseph additional, with the understanding that as much Zuver. Further, that Nancy Zuver cannot take of this latter sum as was necessary was to be ap-advantage of, or set up the want of inquisition,

and the sale on the fi. fa." Exception. (First waive inquisition, and not the defendant in the assignment of error.)

The defendant made the following offer :"Defendant proposes to prove by the witness that Joseph Zuver was absent from home during | the fall of 1858, at the time the waiver of inquisition purports to be signed, and up to and after the time of sale by the sheriff of the property in dispute; and that the signature to the waiver of inquisition is not the signature of Joseph Zuver; for the purpose of showing that there was no waiver of inquisition." Objected to by plaintiff. Objection sustained. Exception. (Second assignment of error.)

Plaintiff offered George E. Zuver as a witness generally. Objected to by defendant, on the ground of incompetency-witness being a son of Samuel Zuver, deceased, and bound by said Samuel's deed of general warranty. Objection overruled. Exception. (Third assignment of error.)

Defendant presented the following points:(1) That if Samuel Zuver approved, recommended, or acquiesced in the conveyance of the property in dispute to Nancy Zuver, at or before the date thereof, the same was not fraudulent as to him, and plaintiff cannot recover. Answer. Affirmed if there were no other creditors, and this one was provided for. (Fourth assignment of error.)

(2) That if Joseph Zuver paid Samuel Zuver moneys at any time, and placed personal property in his hands for sale, sufficient to pay the debts secured by the judgment, upon which the premises in dispute were sold, plaintiff cannot recover. Answer. Affirmed if this was all the debts, and they were secured or provided for. Exception. (Fifth assignment of error.)

Verdict and judgment for the plaintiff. Whereupon, the defendant, Mrs. Nancy Zuver, took this writ and assigned for error the admission of plaintiff's testimony and the rejection of hers, above noted, and the answers of the Court to her points.

Martin and Gardner, for plaintiff in error. It is undisputed that the legal title to the land in dispute was in Nancy Zuver, that she was in possession, claiming under the deed of March 30, 1857. A sale of improved land on a writ of fi. fa., without waiver of inquisition by the defendant in the writ or owner of the land, is absolutely void.

Baird v. Lent, 8 Watts, 422.
Wolf v. Payne, II Casey, 97
Gardner v. Sisk, 4 Sm. 506.

St. B. Church v. Wood, 11 Sm. 103.
Whether inquisition was waived is a matter of
proof. It was manifest error to rule that no one,
except the defendant in the writ, could set up
want of inquisition; for Wolf v. Payne (supra),
rules that the owner of the land has the right to

judgment. It was error to refuse to let the defendant below show that the waiver was a forgery, as the waiver had been admitted in aid of Mrs. Clark's title, if for any thing.

St. Bartholomew's Church v. Wood, supra. George E. Zuver is the son of Samuel Zuver, and resides upon land which Samuel Zuver owned at the time the lot in dispute was purchased. This land descended to witness, who was bound by the deed of general warranty. De Chaumont v. Forsythe, P. & W. 507. Whitchill v. Gotwalt, 3 P. & W. 313.

A party cannot advise and acquiesce in the transfer of property, and then impeach the title, by alleging that his debt was not secured, because

some other creditor was defrauded.

French v. Mehan, 6 Sm. 286.
Davidson v. Little, 10 Harris, 245.
Monroe v. Smith, 29 Sm. 459.

D. B. Kurtz (E. T. Kurtz and McMichael &
Mc Connell with him), for defendant in error.

It is conceded that Nancy Zuver neither contracted nor paid for the lot in dispute, although the deed was made to her. Her husband was then in debt and made no provision for the payment of these claims. Therefore this was a voluntary conveyance, hindered and delayed creditors, and vested no title in her as against them. The title was in Joseph Zuver, and the subsequent sheriff's sale of the property vested the title thereto in the purchaser, under whom the defendant in error claims. Nancy Zuver was a mere intruder, and could not take any advantage of the weakness of the title of the plaintiff below. Hunter v. Cochran, 3 Barr, 105.

Riland v. Eckert, 11 Harris, 215.

Bear Valley Coal Co. v. Dewart, 14 Norris, 72.
Green v. Scarlett, 3 Grant, 228.

Joseph Zuver abandoned the possession, and was estopped from setting up the want of waiver. The want of inquisition can only be taken advantage of by the defendant.

Wray v. Miller, 8 Harris, 111.
Crawford v. Boyer, 2 Harris, 380.
Christy v. Brien, 2 Harris, 248.

When the objection to an offer is a general
one, if any part of the testimony is admissible,
there is no error in overruling the objection.
Robinson v. Buck, 21 Sm. 386.
Laubach v. Laubach, 23 Sm. 387.
Phila. v. Leidy, 10 Barr, 45.

November 12, 1883. THE COURT. As against everybody except persons intended to be defrauded the deed by McCready to Nancy Zuver vested a good title in her for the lands in controversy. Joseph Zuver was as completely divested of title as if the conveyance had been made to his wife in good faith for a full consideration in money; and if void as to his creditors, yet the title was changed, and a sheriff's sale upon a judgment obtained against Joseph Zuver after the

The third specification of error cannot be sustained. As printed in the paper-book the objec

delivery of the deed would be subject to liens | St. 506; St. Bartholomew's Church v. Wood, 61 which existed at and before the date of delivery. Id. 96.) Nothing can be added to the opinions A sheriff's deed would pass to the purchaser all in these cases in support of the points decided, that was conveyed to the fraudulent grantee, and nor need other cases of like import be cited. In as such grantee took subject to liens, if any, the St. Bartholomew's Church v. Wood there was a purchaser at sheriff's sale would take upon the pretended waiver of inquisition, but it was held same terms. Lien-creditors are not included that testimony was admissible to show that in fact among persons who may be defrauded by the there had been no waiver. conveyance of land, for they may follow the land irrespective of all changes in the title, honest or dishonest. (Byrod's Appeal, 31 Pa. St. 241;tion to the witness, George E. Zuver, materially Fisher's Appeal, 33 Id. 294.) But the deed being void as to the defrauded creditors, as regards them it is still their debtor's estate which is sold in satisfaction of their debts, and the purchaser obtains the right to contest and avoid the conveyance. (Hoffman's Appeal, 44 Pa. St. 95; Jacoby's Appeal, 67 Id. 434.) Should a surplus remain after paying the debts it would belong to the grantee, for the grantee's title only fails so far as it stands in the way of the creditors.

At the time Samuel Zuver obtained his judgment Nancy Zuver was the apparent owner of the land. He was the purchaser at the sheriff's sale made by virtue of a fieri facias issued on his own judgment. Indorsed on the writ is a waiver of inquisition, purporting to be signed by Joseph and Nancy Zuver. It may be conceded that, prima facie, the waiver is genuine, having been taken by the officer and returned with his writ. The defendant objected that the waiver was a forgery, but the Court ruled that she could not set up the want of inquisition, and overruled her offer to prove the forgery and that there had been no waiver of inquisition. That was error. Whether the grantor or the grantee in the alleged fraudulent conveyance is the party who can legally waive inquisition, is a question not raised at present; the cause was tried as if the defendant had no right to object to the plaintiff's title. It has already been seen that the right to contest Nancy Zuver's title and possession can only exist in a creditor or purchaser at sheriff's sale. If that sale was void the purchaser was without footing to make the contest. A creditor cannot oust her, or contest her right, save by due legal proceeding. Were he to intrude into possession he could not defend on the ground that her deed is void, or voidable. He must obtain judgment, and pursue the proper legal means for collection of his debt, and then a fraudulent deed shall not block his way; but he is not able to thrust the deed aside until he meets it with valid process, or with title founded on a valid judicial sale of the property.

differs from the bill of exception, which shows that the objection was to his competency to testify. He was competent with respect to matters that had occurred after the death of his father, and if incompetent to prove events prior to said death, the objection should have been pointed to that period.

The defendant's first and second points should
have been affirmed without the added qualifica-
tion. If Samuel Zuver's debt was paid, or a
satisfactory arrangement made with him for its
payment, or if he approved or recommended the
conveyance of the property to Nancy Zuver, he
was not a person intended to be defrauded, and
the conveyance was valid as against him. If the
conveyance was void as to other creditors, and
not as to himself, that fact could in no way work
to his advantage. As well might Joseph Zuver
have attempted to avoid the conveyance as one
of his creditors who advised and approved the
making of it. None but a person intended by
the parties to the conveyance to be hindered, de-
layed, or defrauded, or one holding under such
person-for instance, a purchaser at judicial sale
in the collection of a debt due such person-can
avoid the conveyance; for only as against such
person or persons is the deed void under the
Statute of Fraudulent Conveyances.
Judgment reversed, and venire facias de novo
awarded.

Opinion by TRUNKEY, J.
MERCUR, Č. J., and PAXSON, J., absent.

Potts et al., Executors, v. City of Pittsburgh.
Trespass quare clausum fregit-Municipal cor-
poration-Liability of-Service on-Forum-
Act of June 13, 1836, §§ 37 and 42.

the courts of the county of its situs.
A public municipal corporation can only be sued in

A sale of land under a fieri facias without in quisition, or waiver thereof, is unauthorized and A sheriff cannot, without direct legislative authority, void. A void sale is not confirmed by a distrigo outside his bailiwick to make serviee of process on a bution of its proceeds amongst the judgment- municipal corporation. Sections 37 and 42 of the Act creditors of the debtor. (Gardner v. Sisk, 54 Pa. | of June 13, 1836 (P. L. 579), give him no such power.

Error to the Common Pleas of Westmoreland [not go beyond his bailiwick to serve process on County.

Trespass quare clausum fregit, by James Potts and W. V. Evans, executors of the estate of John Karns, deceased, against the city of Pittsburgh, a municipal corporation of the county of Allegheny, to recover damages for an alleged trespass on lands situate in Westmoreland County. Service of the wṛit was made in Pittsburgh on Robert Liddell, mayor of the city of Pittsburgh. On the trial, when plaintiffs had closed their testimony, HUNTER, P. J., on motion of defendant, granted a nonsuit, on the ground, inter alia, that a municipal corporation can only be sued in the county in which it is situate. Court subsequently refused to take off said judgment of nonsuit, whereupon the plaintiff took Oct. & Nov. '83, 115. this writ, assigning for error said judgment.

All

the key from the neighbor, in whose custody was to be postponed until the death of the Mrs. Hoffman had left it, upon the representa- mother of the vendor. Hoffman took possestion that William G. Smith wished to look at sion in pursuance of his purchase. He inclosed the house. Smith afterwards, when requested, the lot with a fence; moved a house on the lot refused to surrender the key to its former custo- and fitted it up as a residence, erected a wagon dian. shop thereon, and planted some fruit trees. the improvements cost nearly two hundred dollars. He resided thereon with his family for several years. While thus in possession under his purchase, and after these improvements, large compared with the amount of the purchasemoney, were made, the judgment was entered, and bound all his equitable estate in the lot. The defendant in error purchased by virtue of a sheriff's sale on that judgment.

The defendant made the following offer: "We propose to prove by the witness on the stand (Milton Hutchison) that Daniel Hoffman, the purchaser of the lot in dispute from James Black by parol, informed the witness in the fall or winter of 1879 that he had no title to the property; that he could not sell the property because he had no title to it, and that he could not pay the purchase-money, and that he intended to move away from it and never come back again. This to be followed by proof that he did move away and abandon the possession; for the purpose of showing an abandonment of the contract, if any contract has been proven, and that these or other similar declarations were communicated to James Black, and that in pursuance thereof he resumed possession of the property in dispute."

While Hoffman withdrew from the actual possession before the sheriff's sale was made, yet the key of the house was left in the hands of an agent by Mrs. Hoffman to keep possession for them. That key appears to have been procured from the agent by the owner of the legal title under a misrepresentation of authority from Hoffman. Under the facts disclosed it cannot be held to be a voluntary yielding up of the By the COURT. I do not see how that could possession of the lot. All the evidence given, be received to affect the title of the plaintiff and the declarations made to one then a stranger acquired under the judgment. It was a lien to the title, which were rejected, are insufficient upon the property at the time and before this to discharge the equitable interest of Hoffman conversation, and we do not see how it could from the lien of the judgment. As Hoffman affect the right of the plaintiff here to the pos- had been put into possession by the vendor, and session of the property. (First assignment of had made improvements four times the value of error.) the purchase-money, neither he nor one claimThe defendant presented the following point:ing under him could be deprived of the posses"That if all the disputed facts in proof in the sion in the manner stated. The owner of the cause were found in favor of the plaintiff, it legal title must go out of possession and assert would not make out a case of part performance his claim in a legal manner. (Eberly v. Lehman, that cannot be adequately compensated in 13 WEEKLY NOTES, 395.) damages, and therefore does not take the case Judgment affirmed. out of the operation of the Statute of Frauds PER CURIAM. and Perjuries, and the verdict must be for the defendant."

Answer. We refuse to instruct you as re

quested in this point. It is for the jury to find Oct. & Nov. '83, 173. the facts, and for the Chancellor upon the facts

so found to determine whether it would be

J. M. S.

October 18, 1883.

Smith v. Commonwealth.

unjust to rescind the contract. (Third assign- Criminal law-Perjury-Pleading-Two indictment of error.)

Verdict and judgment for the plaintiff, whereupon Milton Hutchison sued out this writ, and assigned for error, inter alia, the refusal of the Court to receive the above offer and the answer to defendant's point.

A. T. Black, for plaintiff in error.
Lewis Z. Mitchell, for defendant in error.

October 29, 1883. THE COURT. The purchase made by Hoffman was clear and specific. The lot was well defined. There is no contention that the sum to be paid therefor was forty dollars. The payment of ten dollars thereof

ments for same offence.

The pendency of an indictment is no ground for a plea in abatement to a second indictment charging the same offence.

A plea averring the pendency of another indictment for the same offence is a nullity.

Error to the Quarter Sessions of Butler County.

Indictment against John Smith for perjury. Pleas, not guilty; and specially the pendency of another indictment charging the same offence.

The defendant was indicted for perjury at No.