
    Reuben Leonard, Plff. in Err., v. Elizabeth Leonard.
    The action of the court of common pleas in setting aside a sheriff’s sale of real estate in execution is a matter of discretion not reviewable by the supreme court on writ of error.
    It seems that where an assignor for the benefit of creditors becomes indebted, after the assignment, to two persons, one of whom is the assignee, both of whom get judgment before the land, remaining after the payment of the debts secured by the assignment, has been reconveyed to the assignor, and the assignee issuing execution on his judgment before such reconveyance seizes and sells the land as the property of the assignor, the better practice is not to set aside the sheriff’s sale at the instance of the other judgment creditor, but to permit the acknowledgment of the sheriff’s deed and leave the rights of the judgment creditors to be settled by an action of. ejectment.
    It seems also that after the payment of all the debts secured by an assignment for the benefit of creditors, land remaining unsold is subject, without reconveyance to execution on judgments entered against the assignor after the date of the assignment. - - •
    (Argued May 26, 1887.
    Decided October 3, 1887.)
    July Term, 1887,
    No. 75,
    E. D., before G-oudoN, TbuNKey, StebRett, Greek, and Clabk, JJ.
    Error to the Common Pleas of Juniata County to review a judgment setting aside a sheriff’s sale of real estate in execution.
    Writ quashed.
    On December 1, 1874, Samuel Leonard executed and delivered a deed of assignment for the benefit of his creditors to Eeu-ben Leonard, who assumed the duties of the trust. Elizabeth, wife of Samuel Leonard, did not join in the execution of this deed.
    The property assigned consisted of both personal and real estate and greatly exceeded in value the amount of the debts. The debts existing at the time of the assignment were all paid by the assignee out of the proceeds of the personal property and the income of the land; and he accounted for enough money in his last account to leave a balance in his hands after payment of all the indebtedness existing at the date of the assignment, of $365.08.
    On August 16, 1877, a divorce a mensa et thoro was granted Elizabeth Leonard, with alimony at the rate of $240 per year, upon the ground of desertion. On October 22, 1878, Eeuben Leonard entered a judgment against Samuel Leonard for $1,065.79, the money represented by this judgment having been loaned after the deed of assignment was made.
    Eeuben Leonard, after the payment of all the debts of Samuel Leonard, contracted before the assignment, issued execution on his judgment and sold a tract of land included in the assigned estate, himself becoming the purchaser for $182.
    Elizabeth Leonard, the divorced wife of Samuel Leonard, who was interested only because she was a creditor for alimony, filed exceptions to the confirmation of the sale, and it was set aside by the court below, upon the ground that as neither debt was a lien at the date of the assignment, and the assignee had not recon-veyed the land to the assignor (which the court held necessary under the act of May 4, 1864), the lien of neither debt could attach to the land, and that, therefore, the land could not be taken and sold in execution of the judgment.
    Eeuben Leonard, thereupon, took this writ.
    
      The assignment of error specified tbe action of tbe court in setting aside tbe sheriff’s sale.
    
      Atkinson & Jacobs, for plaintiff in error.
    Tbe judgment of Reuben Leonard wben entered was a lien on all tbe interest tbat Samuel Leonard bad in tbe land sold, and a reversionary interest was secured to bim by tbe deed of assignment itself.
    A judgment is a lien on every kind of an equitable interest in land vested in tbe debtor, at tbe time of its entry. Clarkbuff v. Anderson, 3 Binn. 4; Pugb v. Good, 3 Watts & S. 56, 37 Am. Dec. 534; Williams v. Downing, 18 Pa. 60; Lyncb v. Dearth, 2 Penr. & W. 101.
    Tbe estate of a trustee is only commensurate with tbe purposes of tbe trust and ceases where there are no further duties to perform. Tbe legal estate vests without conveyance. Westcott v. Edmunds, 68 Pa. 37; Bacon’s Appeal, 57 Pa. 504.
    Whenever tbe entire beneficial interest is in tbe cestui que trust, without restriction as to tbe enjoyment of it, there is no reason why it should not be considered as actually executed. No formal conveyance of tbe legal estate is necessary, although it will be decreed because tbe nominal trust beclouds tbe title and embarrasses tbe rights of alienation, which belong to tbe true owner. Rife v. Geyer, 59 Pa. 396, 98 Am. Dec. 351; Kay v. Scates, 37 Pa. 40, 78 Am. Dec. 399; Yarna’ll’s Appeal, 70 Pa. 335, and Ogden’s Appeal, 70 Pa. 501; Enderiss v. Harkness, 3 W. N. C. 366, and Harkinson v. Bacon, 3 W. N. O. 403.
    A voluntary assignment, by a debtor in failing circumstances, to a trustee for tbe benefit of creditors, does not depend for its validity upon any statute, and tbe acts of assembly which have been passed to regulate it are no parts of tbe insolvent laws. Beck v. Parker, 65 Pa. 262, 3 Am. Rep. 625.
    A purchase by a trustee is not absolutely void, but voidable merely at tbe election of tbe cestui que trust, or those beneficially interested in tbe estate. Eisk v. Sarber, 6 Watts & S. 21; Mus-selman v. Esbleman, 10 Pa. 394, 51 Am. Dec. 493, 2 Wms. Exrs. 938, note H, top page 1005.
    Golden’s Appeal, 110 Pa. 581,1 Atl. 660, was a case in which creditors were prejudiced by a reconveyance to tbe assignor; this is a case in which there are no creditors who were interested in the assignment and no reconveyance, tbe trust having been fully executed by tbe assignee.
    
      The act of May 4, 1864, provides that the court “may order and direct the assignee to reconvey to the assignor,” but it is not compulsory. .
    An order setting aside an execution is not a matter of discretion with the court below, but a judgment with which persons may find themselves aggrieved within the act of May 22, 1722, relating to writs of error and appeals. Pontius v. Nesbit, 40-Pa. 309.
    And a writ of error lies (Jackson v. Morter, 82 Pa. 291); though an appeal does not (Young’s Appeal, 2 Penx. & W. 380; Hoffa’s Appeal, 82 Pa. 297).
    
      Robert McMeen, for defendant in error.
    A judicial sale is a contract with the court, made as a part of a remedial process; and the court has power over such contracts in analogy to the control which it has over other parts of its proceedings. Cummings’s Appeal, 23 Pa. 511.
    The decision of the court of common pleas confirming a sheriff’s sale, and ordering the acknowledgment of the deed to the purchaser, cannot be the subject of a writ of error. Pees v. Berryhill, 1 Watts, 263; Sloan’s Case, 8 Watts, 194.
    It does not appear from Jackson v. Morter, 82 Pa. 291, that, error lies from the judgment of the court of common pleas setting aside a sheriff’s sale.
    The judgment of Reuben Leonard could not become a lien upon the equitable title, until the trusts set out in the deed of assignment were all fully performed.
    The execution was not set aside by the court.
    An assignee is the debtor’s instrument for distribution, and stands in relation to the property as stood the debtor himself,, except that it cannot be seized in his hands on a creditor’s execution. Vandyke v. Christ, 7 Watts & S. 375; Twelves v. Williams, 3 Wharfe. 485, 31 Am. Dec. 542; Bullitt v. Chartered Fund of M. E. Church, 26 Pa. Ill; Mellon’s Appeal, 32 Pa. 129.
    Where one enables himself to become a purchaser of lands at. a sheriff’s sale by the commission of a fraud, no title vests in him by the sheriff’s deed; and the former owner of the land may recover the same in ejectment without offering to refund to the purchaser the money which he has paid to the sheriff. Gilbert v. Hoffman, 2 Watts, 66, 26 Am. Dec. 103; Eoulk v. M’Earlane, 1 Watts & S. 297, 37 Am. Dec. 467.
    In Golden’s Appeal, 110 Pa. 581, 1 Atl. 660, Me. Justice Steeeett says: “Voluntary assignments for tbe benefit of creditors are so regulated by statute and governed by principles of equity that, when duly executed and delivered, neither tbe assignor nor bis assignee nor both together can defeat tbe trust thereby created in favor of creditors. . . . Equity will not
    suffer tbe trust thus created to fail by reason of tbe misfeasance or nonfeasance of tbe trustee named in tbe deed, because a trust, unlike a naked power, is ever imperative and binding on tbe conscience of tbe agent appointed to execute it; and if be refuses or neglects to do bis duty, a chancellor will either compel him to perform it, or substitute another band to uphold tbe trust and carry it into effect.”
   Pee Cueiam:

While we do not by any means approve tbe reasons given by the learned judge of tbe court below for setting aside tbe sheriff’s sale, and think it would have been better to allow tbe acknowledgment of tbe sheriff’s deed, and thus permit tbe judgment creditor to have tested bis right by an action of ejectment, yet as tbe court, in setting aside tbe sale, did but exercise its lawful discretion, we cannot review that discretion on a writ of error.

Tbe writ is quashed.  