
    [Sunbury,
    June 23,1823.]
    NASS against VANSWEARINGEN and others.
    
      m error.
    A sale of the land of an intestate on a judgment, against an executor deson tort is void. But to raise an equity in the purchaser under the judgment, evidence is admissible in ejectment for the land, to show the judgment and execution, and sale; that the purchaser took possession, and paid money, and.m'ade improve* ments, and that some of the children and heirs of the intestate stood by at the sale, and urged its being made: and also, that another of the children contracted to sell the land to the purchaser.
    If one party gives evidence of sufficient personal assets remaining, in order to show that the sale of the land of an intestate was fraudulent, the other party may rebut such evidence, by proof that the personal property was swept awaypjy debts.
    Error to a special Court of Common Pleas of Mifflin county, held before Reed, president of the ninth district, and the associate justices of Mifflin county.
    - Ejectment for eighty-five acres of land, brought by Isaac VanSwearingen and others, plaintiffs below, children and heirs of Thomas Vanswearingen, deceased, who died intestate, seised of-the land in dispute in fee simple, against George Nass, the defendant below. On the trial in the court below, after proof by the plaintiffs of the title of the deceased, and of the plaintiffs’ pedigree, the defendant offered in evidence the records of two judgments,in the Court of Common Pleas of Mifflin county, recovered by Thomas Indis against Samuel Vanswearingen, one of the children of the said Thomas Vanswearingen, as executor de son tort of the said Thomas Vanswearingen ; on which an execution was issued, and the land in dispute was sold by the sheriff to Nass, the defendant: the taking possession of the land by Nass; the payment of $ 700, the purchase money; the making of large and valuable' improvements t.hereon by the defendant, with the' full knowledge of the plaintiffs; that, the sheriff’s sale was open and public, and that some of the children of Thomas Vanswearingen were present at it, urging the sale of the land; together with an article of agreement entered into between Samuel Vanswearingen, one .of the children of the said Thomas Vanswearingen, (but not one of the plaintiffs in this suit) with the full consent and knowledge of the plaintiffs and Nass the defendant, for the sale of the land in dispute. This evidence was objected to by the plaintiffs, and overruled by the court. To this decision of the court, the defendant tendered a bill of exceptions.
    The defendants then offered in evidence the records before mentioned, with an offer to prove further the payment of the amount of said judgments and costs to the sheriff, and the application thereof to the payment of the debts of the deceased. This evidence being objected to by the plaintiffs, was also rejected by the court, who sealed another bill of exceptions.
    The plaintiffs having given some evidence as to the personal property left by Thomas Vanswearingen, in order to rebut this, the defendant offered to prove, that soon after the death of Thomas Vanswearingen, all his personal property, consisting of two horses, a cow, wagon, &c., were sold by the constable of the township at public sale. This evidence was objected to by the plaintiffs, and rejected by the court. The defendant tendered another bill of exceptions. .
    The record returned with the writ of error stated, that after the jury were charged and sent out, they returned, and said by their foreman, they had agreed upon their verdict. The prothonotary inquired how they found in the issue, &c. The foreman answered for the plaintiffs, and handed a paper to the court containing a statement of their finding. The court informed the jury that it was informal, and asked them what was their meaning; • whether they found for the plaintiffs their whole claim. They answered in the affirmative. The court directed the finding to be moulded into the form in which the verdict was recorded, and asked the jury if that was their verdict. They answered, that was their meaning. The counsel for the defendant requested the court to file the paper handed to them by the jury. The court refused, and said the form of the verdict was a matter.between the jury and the court: and also refused to show the paper to the counsel for the defendant. The defendant’s counsel then requested the jury to be inquired of severally how they found. This was done, and they severally answered for the plaintiffs. The verdict was then read over a sentered, and they were asked if they agreed. One of the jurors said something about the costs. The court stated, that the finding for the plaintiffs carried the costs, and the jury could not direct otherwise. They then all assented to the verdict as entered. At the request of the plaintiffs’ counsel, these facts were certified by the court, and ordered to be filed as matter of record in the cause. The defendant excepted to the charge of the court.
    
      Hale and Carothers, for the plaintiff in error.
    
      Burnside, contra.
   The opinion of the court was delivered by

Gibson, J.

The land of Thomas Vanswearingen, who . died intestate, was sold on two judgments obtained against .his son Samuel, as executor de son tort; who had before entered into artieles for the sale of it to Nass, the purchaser at sheriff’s sale. At the trial of this ejectment by the other children of the intestate, the purchaser, who was the defendant below, offered in evidence the record of the judgments, the executions, levy, inquisition, condemnation, venditioni exponas, sale, and the sheriff’s deed: together with proof of payment of the purchase money, of valuable improvements by the purchaser, with the full knowledge of the heirs of Thomas Vanswearingen ; some of whom, it was offered to be shown, were present urging the sale, and also the previous article with Samuel for the purchase of the premises. The court rejected the judgments, and all the proceedings founded on them; but admitted that the other parts of the evidence, if separately offered, would be competent.

On a former occasion, it was held by this court, that the sale having been on a judgment against an executor de son tort, was void; and could of itself divest no right. But notwithstanding this, it possibly may have been attended with circumstances which would give the purchaser such an equity against the heirs of the intestate as would bar them. A party who stands by at a sale of his property, although under an authority entirely void, and encourages purchasers to bid, is guilty of a direct fraud; and one that furnishes a proceeding against him in chancery, by which he may be compelled to convey. In such case a trust arises in favour of the purchaser, ex maleficio. This is the common case of a party silently standing by, while his right is affected by a conveyance to a purchaser for a valuable consideration; in which case his incumbrance shall be postponed or his title conveyed. It is impossible to say what the effect of the evidence might have been, if it had gone to the jury; but if it had clearly appeared that any of the plaintiffs, being of full age and perfectly acquainted with what was transacting, had stood by without objecting, (much more if they encouraged the defendant to purchase,) it would have furnished a decisive objection to their recovery. I at first doubted, whether the naked fact of a sale having taken place with the acquiescence of the plaintiffs, was not all that the defendant should have been permitted to show, as that was enough to make out his case agajnst those who were present and consented; but I am now of opinion, that evidence of all that was offered was competent, and that he was entitled to show the whole transaction with all its attendant circumstances, as his equity would undoubtedly be strengthened by proving, that the sale was made at least under colour of authority. It is unnecessary to say, whether the offer to prove that the plaintiffs had lain by while the defendant was making valuable improvements, ought to have an additional operation in favour of the admissibility of the evidence, as it is clear it was competent on the ground just now stated. The part rejected was again offered.in a subsequent part of the cause, and again rejected; but as the point is fully raised by the first bill of exceptions, it is unnecessary to say any thing on that part of the case.

The land was sold for the intestate’s debts; and to show that the sale was unnecessary, and a mere device to pass the title to the defendant, which Samuel Vanswearingen had articled to convey, the plaintiffs gave evidence that the intestate died possessed of considerable personal estate: to rebut which, the defendant offered evidence, that shortly after his death the whole personal property was swept away by debts, and sold on executions; which were rejected. I can see no ground of objection to the competency of this evidence.

Other errors were assigned, which have either been abandoned or not sustained; and which are of a nature too trivial to merit a particular consideration.

Judgment reversed, and a venire facias de novo awarded.  