actual or constructive, then your duty will be to find for the plaintiff. . together with such sum in damages as will be a fair rent for the premises, from the date of the acknowledgment of the sheriff's deed. . . . I charge you that there is no such evidence of notice of the existence of this trust as would justify you in finding in favor of the defendant upon that ground."

Verdict and judgment for the plaintiff. The defendants took this writ, assigning for error the charge of the Court as above given.

G. R. Fox and H. W. Brunner, for the plain

tiffs in error.

a

Peebles v. Reading, 8 S. & R. 495.

record it and thereby invests her husband with Even a wife who has a written title, if she fail false credit, has no standing as against his lien

creditors.

Coates v. Gerlach, 8 Wright, 46.

Our position is summed up in the words of C. J. GIBSON: "The purchaser of a legal title takes it discharged of every trust or equity which does not appear on the face of the conveyance, and of which he has not had notice either actual or constructive."

Chew v. Barnet, 11 S. &. R. 392.

The lot in controversy was bought at Mrs. Earnest's request, with her money, and for her, and at her instance, the buildings were erected and raid for with her funds. The moneys were held by her husband, as her agent. He had none of his own. The deed was made to him without her knowledge or consent. She had no suspicion that the title was not in her name, and she remained in total ignorance until, after her husband's failure, she learned of the mortgage to Cuthbertson, and that he was proceeding to sell the property for his claim. She had, for eighteen years, rested in the confident belief that her wishes had been carried out, that the title was in her, and that it could not be conveyed or encumbered without her consent. It was natural she should do so. The law could not require her to do otherwise. The equitable title was in her; she was a perfectly innocent holder of it, and a mar-gagee is protected under the law for recording ried woman. deeds against a secret unrecorded equity of which he had no notice.

The assumption that Cuthbertson is a bona fide purchaser for value and without notice is unwarranted.

This is decided in many cases, and is the settled law of Pennsylvania.

Michener v. Cavender, 2 Wr. 337. A mortgagee is not a purchaser of an estate, though for the purposes of the recording acts, he is sometimes treated as such. He acquires neither a legal nor an equitable estate in the premises mortgaged. He is simply a lien creditor; a holder of a security for money.

The general rule is that possession of land is notice to a purchaser of the possessor's title. (4 Kent, 179.) Mrs. Earnest had been in actual and undisputed possession since 1857, dwelling with her family on the premises, to which she had a perfect title. The fact of her possession made it Cuthbertson's duty to make inquiry. If before he took his mortgage he had inquired of Mrs. Earnest, he would have learned the truth. If he had inquired of any neighbor or of any business man in the town, he would have discovered, if he had not already known it, that Mr. Earnest never had the means to buy or build such a property.

The possession of the wife is the possession of the husband, and there was no duty to inquire of her.

This case is The title was

April 4, 1878. THE COURT. governed by the recording acts. in the name of the husband. It did not come through the wife, and there was no notice of a trust for her use. It is a clear case where the mort

Judgment affirmed
PER CURIAM.

May, '78, 58.

May 20, 1878. Missimer, Assignee, v. Ebersole. Execution-Fi.fa.-Abandonment of levy-When the issuing of an alias fi. fa. operates as a waiver of the lien of a levy under a fi. fa.— Assignment for benefit of creditors.

Subsequently to the issuing of a fi. fa. and a levy upon goods under it, the writ was stayed by the Court. Pending the stay of proceedings, the defendant made a voluntary assignment for the benefit of his creditors. After the assignment the stay expired and the fi. fa. was returned. An alias fi. fa. was then issued and a new levy made upon goods, the most of which were, in point of fact, included in the previous levy, but some were not. was nothing of record to connect the goods included in the two levies, except similarity of description: fa., and the proceedings under it, amounted to an abanHeld (reversing the judgment below) that the alias fi. donment of the levy under the fi. fa., and that the lien thereof was gone.

There

May 20, 1878. THE COURT. (After stating the facts, as above.)

Error to the Common Pleas of Lancaster | fore the return of the fi. fa. But in this case the County. fi. fa. was returned and the alias immediately The material facts of this case as stated in the issued. The issuing of the second writ was thereopinion of the Supreme Court were as follows: fore no abandonment of the first, but operated "On the 3d of April, 1877, Abraham Ebersole to continue the lien of the first. (defendant in error) issued a writ of fieri facias against Samuel Blecker, and on the 5th of April the personal property of Blecker was levied upon by the sheriff. Subsequently the writ was stayed by the order of the Court below, the lien of the levy being preserved by said order, and a rule granted to show cause why the judgment should not be opened. This rule was discharged on the 25th of September following. In the mean time (April 23, 1877) Blecker, the defendant in the execution, executed an assignment for the benefit of his creditors, which was delivered to the assignee on the same day, accepted by him and duly recorded.

"After the discharge of the rule to open the judgment, the said writ of fieri facias was returned by the sheriff to the office of the prothonotary at the request of the counsel of the defendant in error. The return is, 'writ stayed by the Court.' At this point the execution creditor had a valid and subsisting lien, and his right to have issued a venditioni exponas, and proceed to sell the property could not have been denied. He did not do so, but issued an alias fi. fa. under which the sheriff made a new levy. His return makes no reference to the levy formerly made on the fi. fa. It was conceded at bar, however, that most of the property seized under the alias was the same property previously levied upon under the fi. fa. There were, however, a number of articles not included in the first levy. These items were subsequently stricken out by the Court. The Court below was asked to set aside the alias fi. fa. on the ground that it was irregular, and that it was an abandonment of the levy upon the fi. fa. This motion was refused, and forms the subject of the three assignments of error."

It was held in Pott's Appeal (8 Harris, 253), that issuing a new execution without disposing of the levy on the old one was an irregularity, but one that could be taken advantage of by no one but the defendant. In that case the alias fi. fa. was levied upon the same property that had been seized upon the prior writ. This fact is stated in the return to the alias, as well as the further fact that it was made "subject to all prior claims and levies made on same."

It will thus be seen that in Pott's Appeal there was an irregularity but no abandonment of the prior levy. The return to the alias shows the property to be the same, and evinces a clear intention to retain the lien of the fi. fa. In the case in hand there is nothing to connect the property levied upon under the alias with the property seized under the fi. fa., excepting similarity in description. For aught that appears from the return, the property may have been entirely different. In point of fact a portion of it was different, as has been already said. We think the alias fi. fa. and the levy under it amounted to an abandonment of the levy upon the fi. fr. and that the lien thereof is gone. If it was intended not as an abandonment but to do what actually was done, to seize on property not before seized, it was, as was said by this Court in Ingham v. Snyder (1 Wharton, 116), "a most unheard-of proceeding, and one whose consequences could have been averted but by relinquishing it at the threshold." In that case the lien of the levy on the fi. fa. was preserved only by the withdrawal of the pluries prior to any action upon it.

A. J. Eberly and J. B. Amwake, for plaintiff in error. When the lien of the fi. fa. was lost by an Until there was a disposition of the property abandonment of the levy, the rights of the aslevied upon under the original fi. fa. an alias signee for creditors attached, and there could be fi. fa. could not regularly issue for the same prop-no valid levy under the alias upon the assigned erty and ought to have been set aside by the Court.

Pott's Appeal, 8 H. 253. Ingham . Snyder, 1 Wh. 116. Eckhols v. Graham, I Cal. 492. Harrison v. Wilson, 2 A. K. Marsh. 547. Alley v. Carroll, 3 Sneed, 110. The issuing of a second execution before the property taken under the first was disposed of was a waiver of the first and destroyed the lien of the first upon the property taken under it. Eckhois v. Graham, supra.

N. Ellmaker for defendant in error.

property. For a mere irregularity in the execution no one but the defendant can complain, as was said in Pott's Appeal, supra; but a voluntary assignee represents the assignor and stands in his shoes. What the assignor may do his assignee as his representative may do for him. The assignor made the motion in the Court below to set aside this execution. Besides, the abandonment of a levy would seem to be a different matter than a mere irregularity in the execution, and one which purchasers or creditors could take advantage of. A discussion of this question, essential to this case.

In Pott's Appeal an alias fi. fa. was issued be- however, is not

The order of the Court below (of the date of | JOHN A. MCKELVY, Owner and Contractor, October 27, 1877) discharging the rule to set TO JARVIS, HALPIN & Co., aside the alias fi. fa. is reversed, and it is now To work, as per contract on Shady Avenue ordered that said rule be made absolute. houses, finished June 18, 1878,

Opinion by PAXSON, J. SHARSWOOD, J. ab

Error to the Common Pleas No. 1, of Alle-order on Byers & McCulloch, tube manufacturers, gheny County.

The lien was filed Nov. 10, 1876, against two adjoining dwelling houses, "for labor, material, &c., furnished to said houses in plumbing and gas fitting under a gross contract made by claimants with said McKelvy, owner and contractor, done and furnished within six months last past for and about the erection and construction of the buildings." The bill of particulars annexed was as follows:

upon the general book account, and the balance, John Barton and A. L. Cochran (with them if any, would be a credit upon the lien." S. W. Cunningham), for plaintiff in error. Affirmed (Second assignment of error). Defendant submitted inter alia the following points:

(3) If the $584 contract for plumbing and gas fitting was substantially completed and was accepted by defendant as finished before May 10, 1876, the fact that defendant claimed that the work had not been done according to contract, and the fact that plaintiffs agreed to do and did do other outside work to compensate for the deficiency, would not preserve the lien." Ans. "I refuse that point, because there is no evidence to cover the facts presented therein." (Third assignment).

(4) If the jury find that said contract was completed before May 10, 1876, work and materials furnished after that time under any new arrangement or with any purpose whatever would not preserve the lien." Refused (Fourth assignment).

(5) "If the jury find that the said contract for plumbing and gas fitting was completed before May 10, 1876, the request of defendant that plaintiffs should put in a street washer in lieu of and to compensate defendant for the plaintiffs' failure to put in hose plates, and the fact that plaintiffs did put in a street washer connected with the pipe in the street, but not directly connected with any pipe in the houses, would not preserve the lien. Ans. "I refuse that point, and especially it ought to be refused, because it is based upon an allegation which the plaintiffs proposed to prove, but to which the defendant objected, and the Court ruled it out, so that certainly he could not base the point upon a piece of evidence which he himself had deprived the plaintiff of an opportunity to offer." (Fifth as(Fifth assignment).

The scire facias was in due form, while the lien offered in evidence was fatally defective, not setting forth the contract as required by Act of Assembly. The allegata and probata did not agree.

Rynd v. Bakewell, 6 WEEKLY NOTES, 167. Though the plea of "no lien" is held to be no plea, yet under the statutory plea of payment the defendant may give in evidence anything which goes to show that the plaintiff is not entitled to recover.

Act of 1705, 81, Purd. Dig. 487.

If the plaintiffs had gone back and put on the hose plates, it might be contended that this was a completion of the original contract, but defend

ant for a consideration released them from this

duty, and agreed to receive in lieu thereof a
street washer, entirely unconnected with the
house. It was no part of the original contract,
and could not extend the time for filing the lien.
J. L. Bigham (with him Blakely), contra.
The plea of "no lien" raises no question as to
sufficiency of lien.

Lee v. Burke, 16 Sm. 336.

On the plea of payment advantage cannot be taken of the invalidity of the lien.

Lewis v. Morgan, 11 S. & R. 234.
Lybrandt v. Eberly, 12 Casey, 347.

That the Court was right in affirming our point as to appropriation of payments, see— Pierce v. Sweet, 9 Casey, 151.

Foster v. McGraw, 14 Sm. 470.

The work in June was done under the original agreement without extra charge. By direction of McKelvy the street washer was substituted for the hose plates. The two articles are the same, differing only in their positions with reference to the building.

Parrish and Hazard's Appeal, 2 Norris, 111.

The Court instructed the jury, inter alia, as follows: "I charge you, that the street washer October 28, 1878. THE COURT. The objecwas a substitute for the hose plates, and the only tion that the contract was not set out in the questions for you to pass upon are, first, whether claim filed was properly overruled by the learned there was an agreement about this $500 order Court below under the case of Lee v. Burke (16 which would make it applicable to this contract P. F. Smith, 336), which decides that, when the for plumbing and gas fitting; and, secondly, whether in good faith the street washer was put in under the agreement or contract made between the parties for the plumbing and gas fitting, or whether it was a mere subterfuge or an effort to do something in addition to the contract in order to cover the time requisite to file this lien." (Seventh assignment).

Verdict and judgment for plaintiffs. Defendant took this writ, assigning for error the admission of the mechanic's lien in evidence, the answers to points, and portions of charge given

above.

plea in a scire facias on a mechanic's lien was "no lien," no question as to the sufficiency of the lien on its face can arise on the trial of issues of fact. This disposes of the first assignment of error.

The second assignment relates to the question of appropriation of payments. There was no error in affirming the plaintiff's first point. (Foster v. McGraw, 14 P. F. Smith, 464.)

The third assignment, however, must be sustained. There was evidence that the contract for plumbing and gas fitting was substantially completed, and was accepted by defendant as

Common Pleas—Law.

C. P. No. 2.

Dunn v. Megarge.

Nov. 16, 1878.

finished before May 10, 1876, and that defendant claimed that the work had not been done according to contract, and that plaintiff agreed to do and did do other outside work to compensate for the deficiency. There was a street washer put in June 28, 1876, according to Bailey's testimony. According to the evidence given by Samuel Jarvis, McKelvy, the defendant, met him and complained about the arrangement he was using for a hose. "I told him that never was put in for that purpose at all, it was merely a Practice-Execution-Sheriff's sale of personbranch put in for the use of the bricklayers to alty-Payment into court of proceeds, when make mortar, and that the street washer arrange permissible-Distribution. ment had been overlooked. He said our arrangement was to put in a hose plate for each house. I admitted that, and we talked the matter over a little, and he wanted it done right away, and he proposed this street washer-wanted to know if that would answer in place of the other two. I said it would if he was satisfied, and he says 'Go ahead, and put it in.'" This evidence certainly covered the facts' presented in the defendant's third point, which ought therefore to have been affirmed, for if the jury believed on this testimony that the street washer was outside work done to compensate the deficiency in the work done under the contract, it ought not to preserve the lien.

Rule by sheriff for leave to pay a fund arising rom a sheriff's sale of personalty into court for distribution.

The sheriff on a fi. fa. sold certain machinery and fixtures of a paper mill for $17,500. The judgment upon which the fi. fa. issued was entered on a bond and warrant of attorney accompanying a chattel mortgage on the machinery and fixtures of the mill. The mortgage was made in February, 1877. The mortgagee, who was plaintiff in the execution, became the purchaser at the sale, and claimed to receipt to the sheriff for his bid, on his judgment. This was resisted by certain claimants for wages, who alleged that they were entitled to liens upon the fund. Thereupon the sheriff took this rule Diehl, for the rule.

In like manner we think the refusal to affirm the defendant's fourth point was error, for certainly, if the jury found that the contract was This is an execution on the judgment on the completed before May 10, 1876, the claim hav-bond, not on the mortgage. There is no eviing been filed November 10, 1876, work or material furnished after that time under any new arrangement or with any purpose whatever would not preserve the lien.

We are of opinion also that there was error in refusing defendant's fifth point, which was sufficiently based upon the evidence of Jarvis, above stated, independently of any evidence offered and ruled out.

We are of the opinion, however, that, if the defendant, being the owner as well as contractor, did agree that the street washer should be put in as a substitute for the hose plates provided in the original contract, and that it should be done under that contract and not to be paid for as extra work, and the plaintiffs assented and did the work, it would have the effect of extending the time for filing the claim to six months from the time such work was done. This was a question for the jury and ought not to have been assumed as a question for the Court, and the seventh assignment of error must therefore be sustained.

Judgment reversed and venire facias de novo awarded.

Opinion by SHARSWOOD, J. WOODWARD, J., absent.

dence that other property, not covered by the
mortgage, was not sold. If any such was sold,
the wages are a prior lien upon so much of the
fund.

Winship, for the sheriff on the same side.
Pancoast, contra.

A.sale on the bond is the same as a sale on the mortgage; it relates back and has the same priority.

The mortgage being made in February, 1877, no lien for wages within the six months allowed by the Act of April 9, 1872 (Purd. Dig. 1464), can possibly intervene, and there is no reason for subjecting the plaintiff to the expense and delay of an audit which can result only one way.

The mortgage covers all the machinery and fixtures in the mill. Nothing else was sold, as appears by the sheriff's bills. The prima facies, therefore, is in favor of the lien of the mortgage, and no evidence has been offered to rebut that presumption

The

C. A. V. Nov, 19, 1878. THE COURT. The usual practice is not to permit the proceeds of a sheriff's sale of personalty to be paid into court. established rule is that the sheriff should take the responsibility of distribution in such cases. But where there is a lien on such a fund, such