
    Supreme Court of Pennsylvania.
    REESER v. JOHNSON.
    1. A plaintiff will not be restrained from selling an alleged interest in real estate, of bis judgment debtor, unless the want of such interest is clear and manifest. The determination of title will be left to an ejectment.
    2. In this case the invalidity of plaintiff’s lien by reason of defendant's adjudicated bankruptcy, was not sufficiently clear to justify an order restraining execution.
    Error to the Court of Common Pleas of Cumberland County.
   Opinion delivered July 2, 1874, by

Mercur, J.

The validity of the judgment against the defendant, is ’ unquestioned. It was regularly obtained by averse proceedings, before any action in bankruptcy was commenced against the defendant. „ The plaintiff claims it to be lien on certain real estate, formerly owned by the defendant and seeks to sell the same by virtue of execution issued on this judgment.

The assignee in bankruptcy, of the defendant, denies the existance of the lien. On application of the assignee, the court enjoined the plaintiff against selling the real estate conveyed by said assignee to Jacob Coover.

The general rule unquestionably is to permit a sale of any alleged interest in land, of the defendant in the judgment. If the defendant has no interest in the land, no title passes. The question of title is usually left to be determined in action of ejectment: Hunters Appeal, 4 Wright, 194. It is true this case recognizes the right of the court to enjoin against a sale of the real estate of the wife on an execution against her husband. It was supported on the express language of the statute absolutely prohibiting the property of a married woman from levy and sale, for the debts and liabilities of her husband, and the unquestioned fact that the land was the exclusive property of the wife. It was there said, a clear case of title in the wife must be shown, “otherwise a court of equity will not interfere, but leave the creditor to pursue his process, and the purchaser at the sale to establish his title in ejectment.”

It must be conceded, if the assignee in bankruptcy rests his right on the proceedings in bankruptcy alone, he is not entitled to the order he has procured. The award in favor of the plaintiff was obtained several days before proceedings in bankruptcy was commenced against the defendant: Roher's Appeal, 12 P. F. Smith, 498; Fehley v. Barr. 16 Id. 196; Keller v. Denmead et al. 18 Id. 449. He therefore seeks to fortify his position by invoking the aid of the voluntary assignment previously made by the defendant in the judgment, for the benefit of his creditors under the laws of this State. It appears, however, that one of the acts of bankruptcy charged in the petition, filed against the defendant, with the execution of that very assignment, and he was declared a bankrupt by general adjudication.

Upon bill in equity subsequently filed in the Circuit Court of the United States, by the petitioning creditor, and by the assignee in bank ruptcy, against the assignees under States laws, it was adjudged and decreed that said voluntary assignment was null and void, providing, however, that all. acts theretofore duly performed by the assignees under the assignment for the benefit of the creditors be deemed valid and effectual, on their duly accounting to the assignee in bankruptcy for what they had received, and that they surrender and deliver over to him all the remaining estates and effects. It was further ordered, that from and after said decree they desisted from acting therein further than directed thereby.

■ This decree of the Curcuit Court may be held sufficient to notify the previous acts of the assignees under the laws of this State, and to prohibit their further action. Its binding force may extend to all persons and things brought within the jurisdiction of that court. The plaintiff in this case, however, was not a party to those proceedings. No question was there considered as to the lien of his judgment, nor as to his rights as creditor of the bankrupt. He never presented or proved his claim before the register in bankruptcy. He in no manner took part in any of the proceedings in bankruptcy. He rested upon his judgment and relied upon the lien which he claims to have thereby acquired.

Without giving any opinion as to the validity of the lien, claimed by the plaintiff, we feel constrained to say, that its invalidity is not so clear as to justify the order made by the court below, The plaintiff should be at liberty to proceed and sell, and the purchaser to try his title by ejectment. Order reversed  