
    Stahle against Spohn.
    Evidence ^tLfíiccUra. tions of a witness to contradict wha* he stated in his examination, or to shew that he did not tell the whole truth.
    
    After a levy upon real property in posse»,.on of the debtor, he cannot, with a view to defeat the creditor, transfer the possession, even to the real owner, who must pursue his title by an ejectment agaiust the purchaser at Sheriff’s sale.
    The Sheriff is not the agent of I he purchaser at Sheriff’s sale; therefore notice to the Sheriff, is not notice to the purchaser.
    A father agreed to sell real estate to his son. A d -ed was prepared, but not executed ; possession delivered ; and part of the put chase money paid. The son then sold to his brother, who went into possession, and paid mon-y. The estate was afterwards sold by the Sheriff, as the property of the lattei ; but between the levy and the sale, the father got into possession. In an ejectment by the purchaser against him, it was held, that it was incumbent on him to shew that his possession was free from fraud. Held also, That the declarations ot the sons were not evidence to affect the purchaser.
    In Error.
    EJECTMENT in the District Court of Lancaster county, by William Spohn, the defendant in error, against the plaintiff in error, Jacob Stahle, to recover a house and lot of ground in Rehmstown, purchased by the former at Sheriff’s sale, as the property of William. Stahle.
    
    
      . A bill of exceptions was returned with the record, which stated, that “ the cause being at issue, and the jury sworn, the plaintiff and défendant gave in testimony, prout the Judges’ notes, and the deeds and instruments in writing therein noted, and then and there further to maintain the issue on his part, offered to prove by William Heller, the declarations of Daniel Stahle, that he, Daniel Stahle, paid to Jacob Stahle, three hundred pounds and upwards, part of the consideration money for the house and lot for which this ejectment is brought; to which the counsel for the defendant excepted, but was overruled by the Court, and the testimony admitted for the reasons hereto annexed ; to which opinion of the honourable Court, the counsel for the defendant except,” &c. No reasons for the admission of the testimony-appeared, however, on the record, nor did the notes of the Judge shew, that William Heller had been examined in the cause.
    From the notes of Judge Smith, which accompanied the record, it appeared, that on the 30th December, 1814, a judgment was entered against William Stahle, at the suit of Peter Wager, on a bond, in the penalty of one thousand four hundred dollars, conditioned for the payment of seven-hundred dollars. To August Term, 1815, a fieri facias was issued and levied on the property, in dispute, .which was condemned. A venditioni exponas issued to November Term, 1815, which was returned, “ Time given:” On an alias venditioni exponas, to April, 1816, the property was sold to the plaintiff.
    Several witnesses were examined on the part of the plaintiff, the substance of whose testimony, was, that when the premises were put up for sale, in March, 1816, William Stahle was, and had for some time • before, been in possession and kept tavern there; that the sale was public, and many persons present at it, among whom were the defendant and his two sons, William and , Daniel, who made no objection to, it; that the property was then purchased by Daniel Star 
      hie, who stated, that he thought he could come in with his judgment against the property, but that he failed to comply with the conditions of salej that the property, then in the possession of Daniel Stable, was sold in July, 1816, on the premises to William Spohn, the plaintiff, in the presence of the defendant, and his son Daniel, who made no objection to the sale j that after the sale to Spohn, the defendant complained, much of the conduct of his sons, and said, that if they had acted rightly, they might have kept his house ; that he told Daniel not to sell his house to William j he could not pay him, and it would be his ruin ; that a few davs after the sale, the defendant applied to one of the witnesses, who, he understood, had the care of the property, to purchase or rent it j that William Stable had improved the property to the amount of two hundred dollars, and that he removed with his family to Reading, in April, 1816, when Daniel went into possession of the tavern.
    The defendant, as it also appeared from the Judge’s notes, claimed under a deed, bearing date, 15th May, 1801, from Christian Carpenter, Sheriff, by whom the house and lot in controversy, were sold as the property of Leonard Keller.
    
    The first witness produced by the defendant, was Daniel Stable, who testified, that his father, Jacob Stable, was in possession in July, 1816 ; that he took possession in 1815, and claimed the property as his own. On his cross examination, he stated, that when he, the witness, bought the property, William was in possession ; that the witness did not go into possession, but lived with his father as bar-keeper; that he did not give his father possession ; he went in of his own accord j that the witness did not keep the property, because he did not comply with the conditions of sale ; that he rented part by consent of his father, who received the rent, none of it being paid to himself; that his father was living in the house, when he rented part of the premises ; that he never told any person that he paid his father two thousand dollars for the property, as he recollected, and that he never said that William Stable paid him two thousand dollars for it; that he rented it the fall after he bought it; that he and his father were both present when it was sold to Spohn ; that his father kept the tavern books, and that he, the witness, did not make out the tavern bills in his own name.
    From the testimony of several other witnesses produced by the defendant, it appeared, that William Stable resided on the premises and kept tavern, for two years prior to the spring of 1816, when he removed to Reading, and was succeeded in the tavern by the defendant, whose son Daniel kept the bar for him. The defendant then had the management of the house, but while William was there, the defendant, gave no directions. When the property was sold to the plaintiff, the defendant came out of a back room, and told the Sheriff, he might sell his son’s property as quick as he could, but not to sell his.
    For the purpose of rebutting the evidence adduced by the defendant, the plaintiff produced a tavern license granted to Daniel Stable, and examined several additional witnesses, who testified, that after William Stable removed to Reading, Daniel kept tavern in the premises, part of which, consisting of a store, &c. he rented in August, 1816, received the rent, and claimed the whole property as his own ; that his mother kept house for him, and, that she, as well as the defendant, resided on the opposite side of the creek, from which she came every morning to his house, until the autumn of 1816, when she went to reside in the house with him. Some time after-wards, the defendant claimed the rent himself, part of which was paid to him, and he brought a suit against the tenant for some alleged arrears. An agreement dated the 24th of March, 1813, for the sale of the property by Jacob to Daniel Stable, was likewise produced, and proved to have been drawn at the request of the parties. It was not, however, executed. Evidence was likewise given, that Daniel, in the year 1816, employed an agent to sell the property, by whom it was sold, at public vendue, to William Stable, who went into possession. While Daniel held the property, he built a store-house and kitchen, worth three hundred pounds. William also made some improvements, but the defendant made none. William made two efforts, through the medium of the same agent, to sell the property, but without success. It was wise proved, that Daniel Stable declared that he had paid his father upwards of three hundred pounds for the house.
    
    After the evidence stated above had been given, the defendant called Daniel Stable, who stated, that he gave his father money both before and after he got the house, not amounting to three hundred pounds; that he could not comply with the agreement, and was then obliged to pay rent; that he employed one of the witnesses to sell the house, and it was sold to his brother William, who, he added, “ it was like enough, paid him two thousand dollars.”
    In giving his charge to the jury, Judge Smith stated, that the manner in which the possession was changed being matter of fact, and the defendant claiming to hold bona fide, and adversely to his son William, he thought it best to let him into evidence of his title. It therefore became a question of fraud, entirely within the province of the jury. If it should appear satisfactorily to the jury, that, after the levy was made, the possession was changed, and delivered by William to his father, with a view to defeat or delay the remedy of the creditor, it would be equally conclusive as if William had continued in possession, and the purchaser would be entitled to the benefit of that possession. If the defendant had a superior title, he must pursue it by an ejectment against the purchaser at Sheriff’s sale. If the plaintiff had been a private purchaser from William, out of possession, of a mere equitable title, he could not recover from Jacob Stable, without a full compliance with the contract which ought to have been performed by William. But where the party comes in under the law, as on a Sheriff’s sale under a judgment against a party in possession, though under a contract, if the possession be fraudulently surrendered, which was the hinge on which the cause seemed to turn, the purchaser would have a right to the possession and interest of the debtor, and to put the other party to his remedy, to establish his lien or equitable claims upon the property, which will always be open to him in another suit. Though when the purchaser has obtained possession, he will hold only the interest of the debtor, and be subject to all the equities to which the debtor was subject, yet as he has no 'means of knowing the title or how it is deduced, he need, in the first instance, only shew the Sheriff’s deed, and that the party, whose right he has purchased, was in possession. The title deeds are in the hands of the other side, and withheld from him. He therefore cannot have knowledge of the circumstances which may have attended the transactions between the debtor and his friends, and consequently is not to be affected by their declarations. The burthen of proof is thrown upon them, and they must shew a superb, r title divested of fraud. If then, from all the facts in the case, the jury should be of opinion, that the defendant entered fraudulently into possession, with a view to conceal the real transaction, he is then in the' same situation as William Stahle himself, and the plaintiff is entitled to recover.
    It is contended, he proceeded, that the defendant gave notice of his claim at the sale, and that the Sheriff is the agent of the purchaser. The law is not so. The Sheriff is not the agent of the purchaser. He derives his authority from the law, and not from the party, and matters privately communicated to him, and not made known to the bidder at the sale, will not affect a purchaser from the Sheriff.
    After adverting to some of the most material parts of the evidence, the Judge concluded by observing, that in a case of this kind, in which it is alleged, that there was a fraudulent contrivance in the family, to defeat the sale, the evidence is generally difficult and circumstantial. If reasonable grounds are laid against him, it becomes the duty of the defendant to make out a very clear case. If he does not, but leaves it doubtful, the jury have a right to presume against him. They would, therefore, under all the circumstances, give such a verdict as they should think proper.
    To this charge, the counsel for the defendant excepted, and on the removal of the record vto this Court, several errors in the charge were assigned, which, together with the alleged error in the admission of the testimony stated in the bill of exceptions, were aigued by
    
      Porter and Rogers, for the plaintiff in error,
    who in the course of the argument cited Phil. Ev. 191. Culbertson v. 
      Martin, 2 Yeates, 443. Alexander v. Mahon, 11 Johns. 185; and by
    
      Buchanan and Hopkins, contra.
    They cited 3 Serg. & Rawle, 311. 314. 3 Caines, 188. Jackson v. Bush, 10 Johns. 223, 2 Johns. 589.
   The opinion of the Court was delivered by

Duncan J. —

For a statement of the facts, I refer to the Judges’ notes. In what stage of the trial, the matter proposed to be proved by William Heller, was offered, ad fitted, and excepted to, does not distinctly appear from these notes ; nor does it appear, whether William Heller was examined, but it does appear, that the same matter was proved bv other witnesses ; and it is to be observed, that the objection was not personal to the witness, — to his competency, but to the matter proposed to be proved by him. The exception was to any declaration made by Daniel Stable. Not to the witness who was called on to prove it, but the subject of proof. But I do not ground the answer to the objection now made by the defendant in error, “ that it does not appear that William Heller was examined at all,” on the reason that the testimony excepted to, was given by other witnesses ; hut on one more satisfactory, and quite conclusive. The bill states, that evidence was offered and objected to; the objection overruled, and the evidence admitted, for reasons said to he annexed to the bill, which do not however appear. I cannot then by implication, contradict this complete bill, and distinct and separate act, set out in the history of this trial; and if I looked beyond that to the Judge’s notes, the conclusion would not be a just one, in point of fact, that the evidence was withdrawn, for the evidence objected to was given. Every bill of exceptions is to be judged of by itself. It is an isolated matter, a point; If the evidence was waived, the bill ought not to have been returned. It is returned ; and we must suppose it to be as it is returned ; and we are bound so to consider it, and decide it, as evidence received. Was it admissible, is the question? Admissible for any purpose, either in chief, or to impeach the credit of Daniel Stable, by evidence of his declarations, inconsistent with what he testified ? The plaintiff below, claiming under a sale by the Sheriff, of the house and lot as the property of William Stable, the son of the plaintiff in error, gave in evidence, an agreement by Jacob to sell and convey to this Daniel, his son, of Daniel’s possession, and of his sale to William, another son, of William’s possession at the time of the levy, and of a sale made on a venditioni exponas on the same judgment to Daniel himself, but which was returned, unsold, Daniel not complying with the conditions of the sale and time given ; and then contended, that the possession was fraudulently changed, for the purpose of defeating the judgment and execution. Whatever might be the rignt of property, the possession after the levy, could not be changed so as to affect the rights of the creditor, even to him who held the legal title, by one who held an equitable interest, to become a legal and absolute one on the payment of money. It is not necessary to decide, whether on the evidence given of an. alleged combination between the father and his sons, to defeat the execution levied, any declaration made by the sons, would be evidence in this action by the father, to which they were not parties ; for Daniel was the father’s witness ; and on his cross-examination, questions were put to' him by the defendant in error, which were not objected to, and to which objections would be vain; for he had undertaken to give an account of the possession of his father, his brother, and himself. He claimed under his father, obtained possession, and sold to William, who went into possession on that sale, with the full knowledge of his father j and to these questions the witness answered thus: — “ I never told any person I paid my father two thousand dollars for this property, as I recollect. I never said William Stable paid me two thousand dollars for this property.” If the evidence of Daniel’s declarations was admitted on this first examination, even then was the inquiry competent to prove that he had said he had paid Jacob three hundred pounds and upwards, part of the consideration money of the house and lot; for the witness, sworn to tell the whole truth, should have stated, I never told any one this, because it is not true, but I did say, I had paid my father three hundred pounds and upwardsand proof to that effect would weaken his credit. The precise sum paid was not the sole inquiry, but whether he had said he had paid his father any money on account of the house and lot, was included in the question. But as we make the bill of exceptions the rule against the defendant in error, so in justice, it must be the rule on both sides. On his second examination by the defendant in the action, Daniel testified, that he gave some money to his father, both before and after he got the house, not amounting to three hundred pounds. The declaration offered to be proved, was in direct opposition to this. It was*, that he had paid his father three hundred pounds and upwards. The bill states, that the plaintiff and defendant “ gave in evidence, prout the Judge’s notes, and the deeds and instruments therein noted, and the plaintiff further to maintain the issue, offered,” &c. We must therefore conclude, that all in the Judges notes had been previously given in evidence, and cannot measure the vacant spaces in the notes, in order to occupy one of -them with the bill, and thus ascertain at what stage of the trial the evidence was received. To impeach the credit of Daniel Stable ; to shew that at different times he had made declarations inconsistent with what he swore, the evidence was proper. With respect to the charge of the Court, I have examined it with great, attention, and cannot find in it any of the imputed errors assigned, as grounds of reversal. The true and the only question was stated by the Court, “ Was the possession which William Stable had at the time of the levy, changed and delivered by him to his' father, with a view of defeating or delaying the remedy of the creditor ?” If it was, then the conclusion was correctly drawn, that the purchaser would be entitled to the benefit of that possession ; and if the defendant in that ejectment had a superior title, he must pursue it in ejectment against the purchaser. It was the sum and substance of the Judge’s charge, that if the defendant came into possession by collusion with William, the plaintiff ought to recover; and the law is, that as between the purchaser and the defendant in the action, the purchaser can recover on the strength of the sale and Sheriff’s deed, without showing other title, nor can the defendant shew title in another; and if it was a tenancy, the plaintiff will be tenant also, and estopped, in a suit by the landlord, from disputing his right in the same manner as the original tenant. So if it was a sale of an equitable interest held on articles of agreement, the purchaser holds the possession, subject to the payment of the purchase money. No injury is done to Jacob Stable. Possession, which ought not to have been changed, is restored__things are placed in statu quo, without divesting him of any right to his purchase money, which, holding the legal title, he may enforce by ejectment, against the land, into whatever hands it may come. Wiselv then is it ordered, that a defendant under a Sheriff ’s sale, becomes quasi tenant at will to the purchaser, and will not be suffered to set up an adverse title. The action of ejectment, is a possessory action, in which the right of possession, and not that of property, is tried ; for if it were an action of property, then one vei diet and judgment would conclude. 1 his is only restoring the possession fraudulently obtained, and not depriving the father of any right to the property, but a mere restitution of a possession surrendered by the debtor, for a fraudulent purpose, — the removal of an impediment, fraudulently' interposed to delay a creditor of of his remedy ; and it is consistent with all the laws of property, that the right of property may be in one, while the right of possession is in another. Hence it is, that from the time of the levy, the jus possessionis is in the Sheriff’s vendee, where the debtor is in possession at the time of the levy. But this would be of little consequence, if it were open to a shifting of the possession ; and as between landlord and tenant, the tenant cannot set up a title against h¡s landlord, so neither can the real owner to whom the tenant treacherously has delivered the possession ; and as the purchaser at Sheriff’s sale is quasi landlord, landlord by relation to the levy, (if not further back) he is equally, within the same reason ; and this was expressly decided at Nisi Prius. Lessee of Culbertson v. Martin, 2 Yeates, 443. The Legislature of this State has extended the same protection to him as to the landlord, and afforded the same relief by a summary mode of proceeding ; and the Act of 6th April, 1802, for the relief of purchasers at Sheriff’s sale, specially provides, that to prevent a delivery of the possession to the purchaser, under the summary mode prescribed, the person in possession, other than the defendant in the action, is required to make oath “ that he hath not come into possession, and doth claim to hold the same by, from, or under the defendant in the execution.” The man who by collusion with the defendant, obtains his possession, could not truly swear, that he did not come into possession by, from, or under him. A tenant cannot attorn, unless it be in consequence of some judgment of law, or order of a Court of Equity, or with the privity and consent of the landlord. This is necessary to preserve the rights of the landlord, — to guard against the disloyalty of the tenant. If he cannot do this act directly, he cannot indirectly, by giving up that possession to a stranger, which he is bound to deliver back to the landlord, produce the same consequences to the landlord j and we have seen that the purchaser at Sheriff’s sale, is quasi the landlord of the defendant in possession. In a case circumstanced as this was, the purchaser never could be affected by the declarations of Daniel and William. A sale from the father to one son, and from that son to another, with possession, and a deed prepared at the instance of both father and son, and money paid, would be sufficient to throw the burden of proof on the father, to shew a right to the possession, divested of all fraud. The Sheriff is not the agent of the purchaser at Sheriff’s sale. He is a public officer, invested with a high authority. It is the interest of all parties, creditors and debtors, to encourage and protect bona fide purchasers at Sheriff’s sale; and this is the policy of the law ; for a purchaser at Sheriff’s sale, other than the plaintiff, is not affected by the irregularity of the proceedings. No wise man would buy at Sheriff'’s sale, and give any thing like the value, if he was to be affected by notice of adverse claims, not publicly communicated at the time of the sale to the bidders, though made known to the Sheriff. Notice to the Sheriff, is not notice to him. '

Judgment affirmed.  