privies to the proceedings therein, and were not concluded thereby. Smedley v. Conaway, 5 Clark, 417. In support of our views generally, we cite Thomas v. Hinkle, 126 Pa. St. 478, 17 Atl. Rep. 670, and Groezinger v. Ostheim, 135 Pa. St. 604, 19 Atl. Rep. 949. The latter cases are full of good, sound reasoning, and fully sufficient to justify the auditing judge in his findings and conclusions in the case in hand, and to sustain his distribution of the fund in controversy, with one exception, which we are satisfied was a mere omission or neglect on his part; that is, he neglected to deduct and allow Prothonotary Neale his percentage under the fee bill of the act of 1868, which is fixed at two per cent. on the first $500.00, and one per cent. on the balance of the fund paid into court. We do not deem it necessary to refer the matter back to the auditor for correction, believing that we have power to correct the distribution in this respect. The total amount of the whole fund paid into court was $3,958.10. Prothonotary Neale would be entitled to percentage as follows: On the first $500.00 of said fund, at 2 per cent., $10.00; on the remainder, $3,458.10 of said fund, at 1 per cent., $34.58; total, $44.58. The last portion of the fund in dispute, being the balance thereof, was distributed to Susie Engle judgment, No. 97, December term, 1891, and the amount distributed to same was $680.37. No injustice will be done her in reducing this amount by deducting the above percentage therefrom. We therefore affirm the decree or schedule of distribution of the learned auditor, modified to this extent. We distribute to Prothonotary Neale for his percentage of the fund paid into court the sum of $44.58, out of the sum distributed by the auditor to Susie Engle, and we distribute to Susie Engle the sum of $635.79, instead of $680.37. The appeal is dismissed, and the rulings of the auditor on the exceptions are sustained."

PER CURIAM. This appeal by Edward Seifert is from the decree distributing the fund raised by the sale of J. B. Beam and Polly Beam's real estate on executions of D. J. Smyers and others. An examination of the record with special reference to the assignments of error has failed to satisfy us that either of them should be sustained. So far as the constitutionality of the act of May 18, 1887, is involved, that question has been settled by opinion just filed in Purvis v. Ross, 27 Atl. Rep. 882, (No. 36 of this term.) Decree affirmed, and appeal dismissed, with costs, to be paid by the appellant, Edward Seifert.

(158 Pa. St. 149)

BUTLER COUNTY v. DEPARTMENT OF PUBLIC CHARITIES OF ALLEGHENY CITY.

(Supreme Court of Pennsylvania. Oct. 30, 1893.)

COURTS-SETTLEMENT OF PAUPERS — JURISDICTION OF QUARTER SESSIONS.

As the court of quarter sessions is given control over the settlement of paupers, the court of common pleas has no jurisdiction in such case.

Appeal from court of common pleas, Butler county; Aaron L. Hazen, Judge.

Petition by Butler county against the department of public charities of Allegheny city to determine the residence of Nathaniel Sefton, an insane poor person. From a decree for respondent, for want of jurisdiction of the subject-matter, petitioner appeals. Affirmed.

On December 26, 1888, a petition was filed in the court of common pleas of Butler county, praying that a commission be appointed to inquire into and report concerning the lunacy of Nathan Sefton. The petition was granted, and the commission duly issued. On the 29th day of December, 1888, this commission filed their report, finding that said Nathaniel Sefton was insane, that the welfare of himself and others required his restraint, and that it was a suitable case for confinement in an asylum or hospital for the insane. The commission further found that the last place of legal residence of said Nathaniel Sefton was in the city of Allegheny, Pa., and that he had no property. On the same day the report of the commission was confirmed, and an order made committing said Sefton to the asylum at Warren, Pa. A commitment was issued to the sheriff of Butler county, by whom said Sefton was committed to said hospital at Warren, pursuant to said order, where he has ever since been maintained at the expense of Butler county. On the strength of the finding by said commission "that the last place of legal residence of said Nathaniel Sefton was in the city of Allegheny, Pa.," a petition was presented in the form of a motion on March 9, 1892, in behalf of Butler county, for a rule on the department of public charities of Allegheny city, Pa., to show cause why the city of Allegheny, Pa., should not be certified as the place of residence of said Sefton, according to the finding of said commission, and a rule was granted accordingly, and issued. The answer of the department of public charities of Allegheny city, Pa., was filed April 22, 1892, in which, inter alia, the jurisdiction of the court of common pleas in the premises was denied; and this was followed by a motion on behalf of said department of public charities to strike off the pending rule for want of jurisdiction in the common pleas court.

The question of jurisdiction was argued

on the motion to strike off the rule, which was granted; the court filing the following opinion September 26, 1892, by Hazen, P. J.: "This case was upon the last regular argument list, and was argued at length by counsel on both sides; and, upon consideration, we are persuaded that this motion must be sustained and granted, and rule discharged, for the reason that the court of quarter sessions is given control over the settlement of paupers, and not the court of common pleas. No authority has been cited in support of this rule, and we know of none in point. And now, September 26, 1892, upon due consideration, motion sustained, and rule discharged, at the cost of petitioner."

A motion for reargument was granted, and afterward the following opinion was filed (Hazen, P. J.:) "This case was upon the last regular argument list, and was called and argued at length by counsel on both sides. After careful perusal of this record, and upon consideration of the question involved, we are persuaded that this motion must be sustained and granted, and that this court is without jurisdiction in the prem. ises. We cannot read into the case what the legislature omitted, in order to give this court jurisdiction. Had the proceedings been commenced in the quarter sessions, doubtless, there would have been no trouble, but such was not the case. There is not even a suggestion to have the proceedings certified to that court. Therefore, the adherence to the opinion and order made in this case under date of September 26, 1892."

J. M. Galbreath, for appellant. H. H. Goucher, for appellee.

PER CURIAM. The decree in this case is affirmed, on the opinion of the learned court below.

(158 Pa. St. 177)

ROBISSON v. MILLER. (Supreme Court of Pennsylvania. Nov. 6, . 1893.)

JUDGMENT-Lien-Sale UNDER EXECUTION-DEED -DELIVERY.

1. On partition between heirs, it was agreed that one, whose purpart was of greater value than his interest, should enter into a recognizance to the other heirs to secure them their share. He took possession of the property, and entered into the recognizance, December 19, 1873. After the partition and agreement, in March, 1872, judgment was entered against him, and in May, 1872, all of his interest in the purpart was levied on, and in 1874 was sold. Held, that the judgment, being a lien on the equitable interest, attached to the legal title, which vested when the recognizance was entered into, and the purchaser at the execution sale obtained the debtor's entire title.

2. Where the records show the sheriff's return to a vend. ex., and the entry of the acknowledgment of the deed by the sheriff on the common pleas record, the acknowledgment and delivery of a deed to the property sold sufficiently appear.

Appeal from court of common pleas, Franklin county; John Stewart, Judge. Ejectment by James B. Robisson against George W. Miller. Judgment for plaintiff. Defendant appeals. Affirmed.

The following is the charge of John Stewart, J., in the court below:

"Gentlemen of the Jury: Both parties to this controversy claim title to the land in dispute under John C. Robisson, Sr., who died some time prior to 1870. The plaintiff's title is thus derived: John C. Robisson, Sr., having died seised of this and other real estate in this county, proceedings were begun in the orphans' court 4th February, 1870, for the partition of his real estate. An inquest was awarded, which was duly returned and confirmed by the court 23d April, 1870. By this return, the real estate of the decedent was divided into four purparts, and valued. In October, 1873, the election of the heirs to accept their several purparts at their valuation was filed, and that tract designated as 'No. 4,' the land which is the subject of this present controversy, was, according to the agreement which the heirs entered into, awarded to John C. Robisson, Jr. This agreement bears no date. The original is not produced, but a copy appears in the orphans' court record, among the proceedings of October term, 1873. The perfecting of this proceeding by which John C. Robisson, who was one of the sons of the decedent, became the owner of this purpart, did not occur until 19th December, 1873, at which time he entered into recognizance to secure the payment of certain unsatisfied debts of the estate, which still retained their lien, and also the payment of the shares of the other heirs. Meanwhile, judgment having been obtained 5th March, 1872, against John C. Robisson by John Witherspoon, execution was issued thereon, and on 9th May, 1872, all of the defendant's interest in this particular tract, purpart No. 4, was levied upon; and, by further proceedings in execution, it was sold by the sheriff, in August, 1874, to J. McD. Sharpe, Esq., for $500. All the facts so far recited are established from the records of the court, which have been offered and admitted. Mr. Sharpe died about the year 1883, having, by his last will, devised his entire estate to his wife, Mrs. Emma L. Sharpe, who, by deed dated 31st January, 1890, conveyed the land in dispute to the plaintiff. The plaintiff claims, and has offered evidence to show, that Mr. Sharpe purchased the property at sheriff's sale for and on behalf of the heirs of his father, John C. Robisson, Sr., and he (the plaintiff) claims to hold under the deed from Mrs. Sharpe, as trustee of the same interests. This, however, is of little consequence in the controversy with the defendant. The defendant's title is derived as follows: In November, 1874, the defendant, who was guardian of the minor children of Fanny Hornish,-who

was one of the heirs of the intestate, and, as such, one of the cognizees in the recognizance given by John C. Robisson, Jr., and the others,-caused a sci. fa. to be issued on this recognizance, and, having obtained judgment thereon against the cognizors, proceeded by writs of fi. fa. and vend. ex. against this particular tract of land known as 'Purpart No. 4,' and the same was sold by the sheriff, by virtue of these execution proceedings, to F. M. Kimmell. The sheriff's deed to Judge Kimmell was acknowledged 27th May, 1875. Subsequently, Judge Kimmell conveyed to the defendant. I have thus stated the claims of the several parties with respect to the title to this land, as established by the evidence, and I am now to consider whether there is anything in the case to be submitted to the jury for their finding. The plaintiff claims by the earlier title,-that is to say, his title, whatever it may be, has its origin in the sheriff's sale to Mr. Sharpe, in August, 1874, whilst that of the defendant has its origin in the sheriff's sale to Judge Kimmell, in May, 1875. If, by the sheriff's sale to Mr. Sharpe, the title to the land in dispute passed, its subsequent transmission is regular enough, and the plaintiff here represents all the title that was in Mr. Sharpe. But it is denied that any title passed to Mr. Sharpe; and here certain legal questions arise, upon which we must pass before we can proceed further.

"It is, first of all, contended on the part of the defendant that this sheriff's sale to Mr. Sharpe was fruitless, because, at the date of the levy on which the vend. ex. was based, -9th May, 1872,-the defendant was not the owner of the land; that he did not enter into his recognizance to the other heirs until 19th December, 1873, and that no title vested in him until his recognizance was perfected; that although the sale did not occur until August, 1873, the intermediate writs of vend. ex. having been stayed, the extent of the sale is to be measured by the levy, and no other rights could pass by the sale than were the defendant's at the time of the levy. When the Witherspoon judgment was obtained to No. 148, April term, 1872, the defendant was tenant in common with the other heirs of all the real estate of which his father died seised, and the judgment was a lien on this undivided interest. He acquired no title in severalty to that particular part which is the subject of the present dispute until 19th December, 1873, when he executed his recognizance. The levy was made 9th May, 1872, when the defendant's interest was an undivided share in the whole, but the levy was confined to the defendant's interest in the land in dispute, about 125 acres.' This levy was followed regularly by successive writs of vend. ex., and the sale did not occur until August, 1874, five months after the title to this tract in severalty had vested in the defendant by reason of the perfecting

of his recognizance. I am of opinion that, notwithstanding the levy antedated the giv ing the recognizance, which act vested in the defendant the whole title to the tract in dispute, the fact that this vesting occurred before the sale made the sale efficacious to pass the whole title. I am not aware of any express adjudication of the question in our own state, but the conclusion stated seems to be warranted by the plain and reasonable inferences which are to be deduced from well-established principles. Had the levy and sale followed the giving of the recognizance, all the defendant's title to the particular tract set apart to him would unquestionably have passed by the sale, notwithstanding the fact that the judgment, when obtained, was a lien only upon his undivided interest in all the lands. When a division of lands occurs between tenants in common, a judgment which had been obtained against one of the tenants ceases to bind his undivided interest in the whole, and is restricted in its lien to the part set out in severalty to the judgment debtor. Bavington v. Clarke, 2 Pen. & W. 124; Long's Appeal, 77 Pa. St. 153; Stewart v. Bank, 101 Pa. St. 345. But under such judgment the defendant's interest in all of the lands held in common may be levied upon and sold before partition, though this is not true of a parcel, only. A levy upon defendant's interest in a parcel of the land is held invalid because, otherwise, the effect would be to create new tenancies in common in tracts and parcels to the prejudice and injury of the common estate. Blossom v. Brightman, 21 Pick. 283. But, as was said in Brown v. Bailey, 1 Metc. (Mass.) 254, this invalidity is with reference to, and for the benefit of, the cotenant of the debtor, for if, on partition being had, the part levied upon should happen to be assigned to the creditor, the debtor will be estopped by the partition, and the title of the creditor I will relate to the time of the levy. To the same effect is Bartlet v. Harlow, 12 Mass. 348. Now, in the present case, the levy was upon all the defendant's interest in one parcel of the estate held in common; but, before the sale, partition had been made, between the cotenants, and the very tract levied upon had been set apart to him in severalty,-to the judgment debtor. It would follow from the authorities cited that the sale operated to pass such title to the vendee as the debtor then had. It is further contended by the defendant's counsel that the failure of the plaintiff to produce the sheriff's deed to Mr. Sharpe, or to show that such had ever been delivered by the sheriff, is a fatal defect in the plaintiff's chain of title. That the sale was made by the sheriff is abundantly established by the records. There is the sheriff's return to the last vend. ex., and, what is conclusive of the facts, beyond all question, the entry of the acknowledgment of the deed by the sheriff upon the common

pleas record. The actual delivery of the sheriff's deed to Mr. Sharpe was not necessary to vest the title in him. With the acknowledgment of the deed, the defendant's title was divested, and transferred to the sheriff's vendee. 'After acknowledgment, the validity of the title cannot be questioned in any collateral action involving the title, except for the absence of authority, or the presence of fraud, in the sale.' Cock v. Thornton, 108 Pa. St. 641. Nor was it necessary that the plaintiff should show actual payment of the purchase money by Mr. Sharpe to the sheriff. By acknowledging the deed, the sheriff himself became liable for the purchase money to whomsoever was entitled to it. It was to that extent, at least, an admission of his that it had been paid, no matter how the actual fact stood, and the parties interested in the fund could look to him alone. Thereafter, it became a question between the sheriff and the purchaser, in which no one but themselves could be interested or concerned. The records produced in evidence show the payment of the money into court, and an auditor's report, regularly confirmed, by which the money realized on the sale was appropriated to the original recognizances which were given in the partition proceedings. Now, if this sheriff's sale was regular, and operated to pass the title of the defendant in the land, then the lien of the recognizance, which was the basis of the proceeding under which the defendant in this action claims to hold the land, was wholly divested, and this land could not be sold a second time for that debt. I do not see that there is any question of fact in the case to be submitted to the jury. I therefore instruct you, as matter of law, that the plaintiff's case, as presented in the evidence, shows an adequate and sufficient title in him, and, the facts relied upon not being in dispute at all, he is entitled to a verdict at your hands for the land described in the writ. You will so render your verdict."

W. U. Brewer and W. Rush Gillan, for appellant. Sharpe & Sharpe and O. C. Bowers, for appellee.

MCCOLLUM, J. The land in dispute is part of a tract or plantation of which John C. Robisson, Sr., who died in 1869, intestate, was at the time of his death seised in fee. On the 4th of February, 1870, on petition of his heirs, proceedings in partition were instituted, which on the 23th of April, following, resulted in the confirmation of an inquisition dividing the tract into four purparts. In conformity with an agreement be tween the heirs, purpart No. 4, being the land for which this action was brought, was awarded to John C. Robisson, Jr., at the valuation of $1,488.49. It was intended by the parties that each taker of a purpart should have immediate possession and enjoyment of

the same, and be charged with interest on its valuation from August 1, 1870. As the estate was then unsettled, and the personal property was insufficient to pay its debts, it was not definitely known what sum each heir would be entitled to receive from the aggregate valuation of the several purparts. It was subsequently ascertained that $1,100 must be deducted from this valuation for debts and expenses, leaving for distribution to heirs $4,096.78. This balance included interest for three years and three months on the valuation of the purparts. It was agreed upon, and the share of each heir in it was ascertained in November, 1873. Four shares were extinguished, and one was reduced to $271.01 by acceptance of purparts; and on the 19th of December, 1873, the heirs who accepted lands at valuations greater than their shares entered into a recognizance for the payment to the other heirs on the 1st of November, 1874, of the sums to which they were respectively entitled. The amount so secured was $1,441.54, and it represented the balance due from the cognizors on the lands taken by them. Of this balance the sum of $1,133.74 was due from John C. Robisson, Jr., on account of his acceptance of purpart No. 4. In accordance with his agreement with the other heirs, he took exclusive possession of this purpart three years and five months before entering into the recognizance aforesaid, and during that time held and used it as his own, and accounted to them for interest on their shares of the valuation or price he was to pay for it. By this agreement, and his possession thereunder, he acquired an equitable interest in the purpart,— a right to have the full legal title to it on paying or securing to the other heirs the valuation money, less the share awarded to him, and, when he entered into a recognizance for the payment of their shares, such title vested in him. On the 5th of March, 1872, James Witherspoon obtained a judgment against Robisson, which from that date became a lien on the latter's interest in purpart No. 4. A fi. fa. was issued on the judgment on the 11th of April, 1872, and by virtue of it such purpart was levied upon, an inquisition was taken, and the land was extended. The creditor having elected to allow the debtor to remain in possession and pay the rental, and the latter being in default, a writ of vend. ex. was issued, on which the land was sold by the sheriff on the 11th of August, 1874, for $500, to J. McDowell Sharpe, for the benefit of the cognizees, to whom the net proceeds of the sale, against the objection of the judgment creditor, were awarded. The title acquired by Sharpe at this sale was on the 31st of January, 1890, conveyed to James B. Robisson, who is the plaintiff and appellee in this action. On the 21st of May, 1875, púrpart No. 4 was sold by the sheriff to F. M. Kimball for $426, by virtue of process on a judgment obtained