
    RHOADS VS. HEFFNER.
    In an interpleader case, the claimant was not allowed to show, that the judgment creditor was the assignee in bankruptcy, of the judgment debtor : in order to estop the oreditor from alleging, that the goods whioh he had levied on, for his own claim, belonged to the assignor,
    The creditor was permitted to prove that the judgment creditor subsequently claimed his exemption out of the property.
    Error to Common Pleas of Schuylkill County. No. 202 January Term, 1880.
    This was a feigned issue to determine the title to certain personal property which had been levied on by the sheriff. The facts of the case appear in the charge of the Court, which was delivered on November 17th, 1879, by
    Pershing, P. J.
    Gentlemen oí the Jury:
    The case you have been empauneled to try is a feigned issue, and comes before you in this way: a judgment was entered in this Court to number 195, March Term, 1861, against William Rhoads and Jacob Rhoads. This was revived to the use of Samuel Heffner, amicably by the defendants to No. 417, December Term, 1877. On this judgment Heffner issued a Fi. Fa., to No. 288, December Term, 1877, and on the 20th November, 1877, a levy was made by the Sheriff on a large amount of personal property, part as belonging to William and part as belonging to Jacob Rhoads.
    Isaac Rhoads made claim to the Sheriff that he was the owner of the property mentioned in the levy. The Court thereupon issued its rule, upon which the parties were brought .before it and the issue formed in order to determine whether the claim made by Isaac Rhoads was a valid one. In this issue Isaac Rhoads, the claimant, is made the plaintiff, and Samuel Heffner, who is the plaintiff in execution issued against William and Jacob Rhoads is the defendant. The only question in your decision is, was Isaac Rhoads the owner of this property ¿t the time it was levied on.
    If he did not own it, it makes no difference in this proceeding by whom else it was owned. If you find he owned,the whole of it, your verdict will be a general one for the plaintiff, if you find he owned none of it, your verdict will be a general one for the defendant. Or you may find that the plaintiff was the owner of part of the articles levied on, and if you do so, your verdict will be in his favor for that part of the property which you will specify and name in your verdict. The plaintiff’s claim to the ownership of this property levied on in 1877, goes back as far as 1860. John P. Hobart testified that he was Sheriff oi this county at that time, and on the 27th of December, 1860, sold the real estate and personal property of Jacob and William Rhoads to John Sweigert. The Court here read to the jury a list oi these articles as shown by Sheriff Hobart. Yendue list was produced by him, this was followed by a deed, dated 7th of March, 1861, from John P. Hobart, Sheriff, to John Sweigert, for a tract of land containing 271 acres, sold as the property of William and Jacob Rhoads. The plaintiff next gave in evidence the proceeding under date of March 20th, 1871, in' the Orphans’ Court of Lancaster County, for a decree of specific performance of a contract for the sale of the land, and personal property to Isaac Rhoads, Margaret LeFevre and William Rhoads. Subsequent evidence in the case shows the transfer of the interest of Margaret LeFevre and Eviline Rhoads to Isaac Rhoads.
    The next evidence was the account of the administration of Jno. Sweigert, deceased, filed in the Orphans’ Court of Lancaster Co., and confirmed nisi, September 18, 1871, showing that the administrators charging themselves with $4,900, amount received from Isaac Rhoads, Margaret LeFever and Eviline Rhoads for farm and personal property. This is the land occupied by Jacob Rhoads. The plaintiff put in evidence a deed, dated 15th August, 1868, from Henry Reed to Isaac Rhoads, for a tract of land in Pinegrove township, containing 158 acres, 79 poles. This was occupied by William Rhoads. You will remember that other evidence submitted to you shows, that this tract was sold on the foreclosure of a mortgage given by Isaac Rhoads to Reed, and that it was alleged that the defendant’s counsel that inasmuch as Isaac Rhoads was shown to be a man of means ; the sale of the tract was some evidence that he was not the real owner, and that the transaction between him and his brothers William and Jacob Rhoads, was for the purpose of protecting their property from their creditors. In this connection your attention is directed to the deposition of Jacob Rhoads and Charles Sweigert. Jacob testifies that the personal property here in controversy, belonged to his brother Isaac, when levied on in 1875, that Isaac bought it from John Sweigert, who had bought it at Sheriff’s sale in 1860, when he, Jacob, and William Rhoads were sold out by the sheriff, and that he and William lay claim to no part of this property. On his cross-examination, he states that Sweigert bought the farm and some personal property, that the witness had never moved from the place, nor settled nor made up any account with Isaac' Rhoads ; that Isaac sent stock from Lancaster county to carry on the farm ; and that Isaac sold his farm in 1873, to Zimmerman. This no doubt, refers to the deed of trust in evidence.
    Charles Sweigert was one of the administrators of John Sweigert, deceased. It is part of his deposition that administrators held this farm and stock, and that they were sold together, or con-veyed by them in 1870 or 1871, to Isaac Rhoads, Margaret LeFevre and Eviline Rhoads for $4,900. That these parties paid on it the same as cash, and that he knows of no collusion or arrangement, nor does he know anything of the personal property at the present under levy.
    The testimony of William Rhoads is important in this case. He proved a list of articles levied on under the Heffner writ, as belonging to him, Rhoads, and testified that they all belonged to Isaac Rhoads, the plaintiff. This witness said in the course of his examination, on the part of the plaintiff, — “when Isaac Rhoads bought the farm, he stocked it to some extent; he sent from Lancaster county, oxen, horses, wagons, two cows; these were on the farm at time of levy. Some young cattle there on the farm; raised on it. He sent me money and gave me money to buy some articles, a mowing machine, &c. He sent me $90 at one time, $290 at another time, $160 at another, and a smaller amount at one time.” “I put out the reeds for the crops. I had no lease from Isaac Rhoads. He suffered me to remain there and work the property. I never rendered him a particular account, I told him if anything was to pay for lime or anything.”
    The witness further testified that he was present in Lancaster county, where Isaac resides, when Isaac sent to Jacob on the farm he occupied, two mules, a horse, and two or three cows at different times. He states that some of the cattle levied on was sent there by Isaac Rhoads, and that Isaac procured some afterwards. Wm. Rhoads also testified that he had no means, that he was bankrupt and acted under power of attorney for his brother Isaac. Jacob, he states, had no lease and kept no account, nor did the witness, of the products of the farms they used and occupied.
    They sold hay, &c., to pay the laborers and mechanics, and used the property as if it was their own, because, said the witness, we could use it in no other way.”
    The cross-examination of this witness consumes a great deal of time. You will remember that he stated that Sweigert left everything there that he bought at the Sheriff’s sale in 1860, except a colt or horse ; that Sweigert came there occasionally; that no accounts were kept, rents or settlements had; that there was no agreement for the payment of rent or for the use of the property of which he and Jacob had possession. Witness can’t say that all the same articles remained till the time that Jacob Rhoads purchased. Oats, bay, corn, &c., were used, and others made again, sold or fed. Cattle and hogs were raised on the land, some of which were killed and consumed. One of the calves on Jacob’s place was bought from Nutting. A dun horse which the witness had he traded for another for to Jacob Behne, having bought the one he thus traded, with money given him by Isaac Rhoads from Behne. The stack of rye levied on as belonging to Jacob, the witness says was raised on the Sweigert farm, occupied by Jacob, the same year in which the “levy” was made. Witness does not know of any grain in stacks being left over from one year to another. The witness was examined in your hearing as to the several items in the levy of November 20th, 1877. The “fanning mill,” to the best of his knowledge was the same as sold in 1860, by the sheriff. “One sled” he thinks was the same sold in 1860. “One cutting bench,” he can’t tell where it came from. “One two horse wagon,” he does not know where it came from, or who bought it, but he or Jacob paid for it. “One brown horse,” levied as property of witness, he states 12, 14 or 16 years old. Witness states I don’t knQW I had any horses bought by Sweigert at the Sheriff’s sale. I got the one I think in 1869, when I went to farm for Isaac Rhoads. Got them from Jacob Behne, he was a low priced horse. So of the “gray horse,” bought from Behne with money furnished witness says by Isaac Rhoads. “4 ploughs” one was bought new by the witness and paid for, the other three were old, where they came from or what they cost, witness does not know. It is unnecessary to refer you to the evidence on this part of the case at greater length. It is all for your consideration.
    Witness in addition testifies that there was no agreement how long he and Jacoo should remain there. That the only money they paid Sweigert was for some sills he bought ta Sheriff’s sale, which Rhoads sold for him. It would appear from this testimony that the Rhoads farmed the land, lived out of the crops, sold hay, grain sometimes, and with the proceeds paid laborers, mechanics and taxes, and made purchases as detailed by this witness. How much he thus expended, what the expenses were, witness is unable to state. In reference to the mortgage given by Isaac Rhoads to Henry Reed, for what is called the Reed farm, on which Wm. Rhoads, this witness resided, he states that at the time of the purchase, Isaac Rhoads paid Reed $1,000. That the mortgage was for $3,000. Witness says, “Isaac Rhoads’ one spring came up and gave me the money to pay the interest; another year he sent it to me. I think I gave Isaac Rhoads’ notes for the interest for one or two years. I paid the interest myself one year.” As you already have heard, this land was sold under this mortgage. This is the substance of the evidence on the part of the plaintiff under which he claims your verdict in this issue. You will take into consideration all the Evidence submitted.
    [The defendant has offered in evidence his judgment, FL Fa., issued thereon, and levy made in pursuance of it on November 20th, 1877. This was followed by deed, dated April 15th, 1875, from Isaac Rhoads to Ed Zimmerman, in trust for Mary A., wife of Jacob Rhoads, during her life, for the tract of land in Pine-grove township, containing 271 acres, more or less, it being the same land which the administrators of John Sweigert, deceased, had conveyed to Isaac Rhoads and his sisters, Margaret LeFevre and Eviline Rhoads, the interest of the latter afterwards passing by conveyance to Isaac Rhoads. This deed contains a power authorizing Mary A. Rhoads to dispose of the trust estate by her will. The defendant next gave in evidence the will of Mary A. Rhoads, dated June 1st, 1876, and probated August 22d, 1876, in which she devised the estate of which she was the cestui que trust, to E. R. Zimmerman, in trust for her husband, Jacob Rhoads, during his life. A judgment of Kitzmiller, Stees & Co., against William and Jacob Rhoads, obtained in March, 1867, and revived on 11th March, 18 Í8, was read in your hearing for the purpose of showing indebtedness by these parties, and for the further purpose of showing that on an execution issued on this judgment on which a levy was made on July 13th, 1878 ; Jacob Rhoads claimed the benefit of the exemption law out of the hay, rye and wheat raised on the property occupied by him and William Rhoads, and that under this assertion of ownership, an appraisement was made, and the benefit of exemption allowed him. It appears that subsequently, Isaac Rhoads made a claim on this Bame property.]
    Samuel Heffner, the defendant, testifies that he has visited the Rhoads’ Farm pretty often since 1862. He thinks things are going back, that the fences are very poor, and the buildings dilapidated. He saw young cattle there — no old cows, and on inquiring of Jacob Rhoads where he got the stock of cattle, he replied from Nutting. Jacob told the witness he had very pretty cattle, and took him around to see them. Witness says, “I asked Wm. Rhoads why he bothered about paying the Reed farm when Isaac owned it, and he said, “O, I couldn’t let Isaac pay anything.” I often wanted money for this debt, and William and Jacob both told me that the lawsuit about the Reed farm, and what they had put in it would take all their money away; that they had put in $1,500 — ” “They said they had put $1,500 into the Reed land, had now got into trouble, but would not let Isaac pay a cent. The $1,500 was in the payment of the land ; said it cost them a great deal of expense.
    In rebuttal William Rhoads denies that he at any time told Heffner that $1,500 as testified by him was put into the Reed property. Their evidence here is in direct conflict. It is the duty of a jury to reconcile conflicting statements of witnesses, where this can be done. If the testimony cannot be reconciled in this case, you must determine which of these witnesses you will believe. From their manner of giving testimony, and from the facts and circumstances tending to corroborate on the one hand, or contradict on the other, you will make up your judgment.
    Before proceeding to the law of the case and the points submitted, it is proper to observe, as it occurs to me at this point, that ex-Sheriff Hobart in his testimony, on his attention being directed to the subject, testified that some of the articles included in the Heffner levy made in 1867, were not sold by him at the Sheriff’s sale of 1860, nor does Mr. Hobart know that any of the personal property levied on as belonging to the Rhoads’ in 1877, was the same as sold by him as their property in December, 1860.
    The law applicable to cases of this character is found in a large number of decisions of the Supreme Court. In one of these (Walter vs. Gernant, 1 Har. 517), it was said, “It is certainly not a fraud to leave property purchased at Sheriff’s sale in the possession of the former owner for his use, or even for his consumption. No presumption of fraud arises from retention of possession after a sale, which being made under the supervision of the law, cannot be colorable; and permission to use or enjoy the thing bought, is an act of benevolence which does not amount to a gift of it, or revest it in the debtor. This of itself would not constitute a fraud; it must be established by other facts and circumstances.”
    You will observe the distinction between a purchase made at private sale and one made at a public'judicial sale. As bearing upon the question involved in this issue, I will quote to you from a later decision of the Supreme Court. (Dick vs. Cooper, 12 Har. 220, &c.) When goods are purchased at a private sale, it must be shown that the vendee took and kept possession of them; otherwise the contract is conclusively presumed to be fraudulent as against creditors of the vendor. But one who buys property at a public judicial sale, may leave it with the defendant in the execution without making it liable to be taken under another execution. It must be left, however, under such a contract of bailment as would in law protect it from the bailee’s creditors, if he had never been the owner of it. It may be hired or loaned with safety. But if it be sold or given, the purchaser parts with his title, and cannot maintain tresspass against anybody for taking it. It was held (1 Jones, 264) that when a chattel is left by the purchaser with the defendant in the execution, though it be under the form of a loan, it will be liable to another levy, if it is perishable, and if the lender is not to receive it back in specie, but to take instead of it another article of like nature and value.
    [Now, in the case before you, gentlemen of the jury, the evidence is, that there was no agreement by which Sweigert or Isaac Rhoads lent or hired this property to William and Jacob Rhoads; no rent was paid by them, or contracted to be paid. The property was simply left with them, and was possessed by them in the manner they have testified to, from 1860 down to the levy made in 1877. What relation did William and Jacob Rhoads sustain to this property ? If they did not purchase it, did not hire it, did not borrow it, was it a gift to them ? If all the evidence satisfies you that it was a gift, then they would own it in that way, and it would be liable to levy and sale for their debts.]
    defendant’s points.
    1st. That under the trust deed from Isaac Rhoads to Edmund R. Zimmerman, and the will of Mary A. Rhoads, limiting the estate in said deed to her husband, Jacob Rhoads, for life, and after-, wards to her heirs, in pursuance of a power in said deed ; they must find for the defendant for all such property in the levy as was the immediate product of the soil since 1876, the date of the probate of said will.
    2d. That if they believe under the evidence, that the property bought by Sweigert at the Sheriff’s sale in 1860, was left in the possession of Jacob Rhoads and William Rhoads, without a contract of hiring or bailment, or sold the same to them, the title to the same reverted in them, and would be liable to a creditors execution, and their verdict must be for the defendant.
    3d. That if the jury believe from the evidence that the property purchased by Sweigert, and allowed to remain in possessio n of defendants in the execution viz.: William and Jacob Rhoads, with the right to consume and or use the same, and not to return the same property in kind, then their verdictjmust be for the defendant.
    4th. That if the jury believe from all the evidence in the case, that the sale from Sweigert to Isaac Rhoads and his sisters, and from the sisters to Isaac Rhoads, and from Isaac Rhoads to Ed - mund R. Zimmerman in trust for the wife ot Jacob Rhoads, were not bona fide, but for the purpose of hindering, delaying and defrauding the creditors of the said William and Jacob Rhoad s, then their verdict must be for the defendant.
    ANSWERS.
    
      First Point. It appears from the the evidence, that Isaac Rhoads conveyed titled to what is called the Sweigert farm, to E. R. Zimmerman in trust for Mary A, Rhoads, wife of Jacob Rhoads, for life; in pursuance of a power contained in said deed of trust, Mary A. Rhoads devised the same to E. R. Zimmerman, in trust for her husband for life, with remainder over to the children. Mary A. Rhoads died in August, 1876, after which time her husband was in the occupancy and enjoyment of the property. We think therefore this point is correct and must be affirmed. (Mr. C urnming here addressed the Court.) The Court: It is true as counsel has just stated, that the trust deed to Zimmerman contained a proviso or condition that the estate for the use of. Mary A. Rhoads should not be subject to her husband’s debts, but; no clause or stipulation of that kind is contained in her will as I now recollect it, and it is still my impression that this point should be affirmed.
    
      Second Point. This point is not very clearly drawn. We answer it by repeating what we have already said, if there were no sale of this property, as suggested in this point, Or there was no contract of hiring or bailment, and the evidence satisfies you from the retention of the property by William and Jacob Rhoads for so long a time, and the manner in which they used and enjoyed it, that it was a gift to them, we affirm this point.
    
      Third Point. We cannot affirm this point in the broad terms in which it is put. We have already said to you, that the mere retention of the property by William and Jacob Rhoads, even with the right of consumption, would not of itself be fraudulent. We refer you-to the general charge.
    
      Fourth Point. This is affirmed.
    And now, gentlemen, we submit this case to you. It is one of importance to the parties, and merits your Careful consideration. We repeat, in order to prevent any misunderstanding, that if you come to the conclusion that the property in controversy, all of it belonged to the plaintiff at the time of the levy, your verdict will be for him generally ; if you find none of it belonged to him, you will find for the defendant. If you find any part of the articles levied on were the property of the plaintiff, you name them, and by your verdict find these in his favor.
    November 17th, 1879; verdict for defendant.
    During the trial the plaintiff was not permitted to show the bankruptcy proceedings of William and Jacob Rhoads, to show that Heffner was their assignee in bankruptcy, and would not be permitted . to levy on the property if it was theirs to satisfy his own debt while acting in a fiduciary capacity. This forms the subject of the first error. The offer of the Kitzmiller, Stees & Co. judgment was also objected to, and forms the subject of the second error. The remaining four errors were to the portions of the Judge's charge in the brackets, and the answers to the second and fourth points.
    
      Rhoads took a writ of error, and J. W. Ryon and B. W. Cumming, Esqs., for plaintiff in error argued: that
    As Heffner was the assignee in bankruptcy of "William and Jacob Rhoads, he could not issue execution in his own behalf, for he could not withdraw the property from the other creditors, by means of his exeeutioñ; nor could he sue in his own name for it, if he never had it in his own possession ; but would be bound to sue for it in his capacity as assignee. Therefore the bankruptcy proceedings would show that Heffner was not entitled to the property. As to second and third errors, the property levied on by Kitzmiller, Stees & Co. was raised on the premises, after the date of Heffner’s execution, and the action of Jacob Rhoads in claiming his exemption out of it, did not affect this case. The charge of the Court on this branch of the case, was calculated to mislead the jury. Besides the evidence of debts contracted subsequent to the date of the execution, cannot be evidence of fraud in the original purchase, especially as Kitzmiller, Stees & Co. do not complain. A voluntary conveyance is not to be deemed fraudulent as to subsequent creditors, unless it is shown that it was for the express purpose of defrauding such creditors; and prior debts existing at the time, of the conveyance, are not prima facie evi- . deuce to establish fraud in the conveyance; Harlan vs. Maglaughlin, 9 Norris 293; Snyder vs. Christ, 3 Wright 499; Monroe vs. Smith, 29 P. F. S. 459; Williams vs. Davis, 19 P. F. S. 21. As to fourth and fifth errors, there was no evidence to show that Isaac Rhoads had made a gift to William and Jacob of this personal property, for merely leaving it in their possession after the Sheriff’s sale, was not fraudulent; Myers vs. Harvey, 2 P. & W. 478; Fitler vs. Maitland, 5 W. & S. 307; Heitzman vs. Divil, 1 Jones 264; McMahon vs. Sloan, 2 Jones 229; Clark vs. Jack, 7 Watts 375; Dick vs. Cooper, 12 Harris 217. "As .to the sixth error, the answer is misleading and tended to confuse the jury, as Isaac Rhoads never sold any of this personal property to Zimmerman, but did sell real estate which is not in controversy here.
    
      N. Heblich and J. W. Moyer, Esqs., contra,
    
    argued that Isaac Rhoads was not the bona fide owner of the property levied on, which was the product of the farm when the levy was made. A? to the second and third errors they cited Shuman vs. Shuman, 3 Casey 90. As to the fourth error, if the property was given to the defendant, it again becomes liable to execution and sale; Dick vs. Cooper 12 Harris 220. They also cited Schott vs. Chancellor, 8 Harris 195, and Heitzman vs. Divil, 1 Jones 264.
   The decision of the Court below was affirmed on March 28th, 1881, in the following opinion : (

Per Curiam.

We think the questions of fact were very fairly submitted to the jury by the learned President of the Court below, under proper instructions as to the law. The evidence rejected, as complained of in the first assignment of error, we think immaterial and inadmissable.

Judgment affirmed.  