
    DEN EX DEM. KING v. MANNING ET AL.
    1. In an action of ejectment, where the lessor of the plaintiff claimed under conveyances made to him by one of the defendants ; and a prior deed of assignment, from this defendant, as an insolvent debtor, to his co-defendant, who defended as landlord, was set up as a defence, and it appeared that the party making the assignment had remained in possession of the premises from the date of the assignment to the time when the declaration was served, a period of many years. It was held, that the plaintiff should not have been nonsuited; but the evidence should have gone to the jury that they might pass upon the fairness of the proceeding.
    2. After the lapse of m ,e than eleven years, the jury should have been instructed, that they might presume the trust created by the assignment executed, and the land reconveyed or released to the assignor.
    3. Where the lessor of the plaintiff claims title under a sheriff’s deed, made to him after a sale by virtue of a special scire facias, Elm. Dig. 516, parol evidence is inadmissible to impeach the judgment on the scire facias, by proving the death of the plaintiffs before the writ issued.
    If admissibl e it is not a ground to nonsuit the plaintiff, but the evidence should go to the jury.
    
      This was a case certified from the Middlesex Circuit Court. An action of trespass and ejectment'was brought upon the demise of Theodore F. King, against William B. Manning and Jonathan R. Dunham, for a farm in the county of Middlesex, in the possession of the defendant Manning. At the trial, the defendants confessed lease, entry, ouster, and that the possession of the premises in dispute was in Manning. The plaintiff offered and read in evidence a deed of conveyance in fee, for a part of the premises, from the defendant Manning and his wife, to the lessor of the plaintiff, dated the 19th of November, 1835; and mother deed of conveyance in fee, for the remainder of the premises in dispute, of the same date, from Manning to the lessor of the plaintiff".
    
      A. D. Titsvjoiih, a witness on the part of the plaintiff, testified that the defendant, W. B. Manning, was then in possession of the premises described in the said two deeds of conveyance, and had been so for thirty years or more. The plaintiffs then offered and read in evidence, from the book of judgments, the record of a judgment, obtained in the Middlesex Pleas, by Robert Boggs and James Boggs, executors of Robert Morris, deceased, against Manning at December term, 1819, for $2,350, in an action of debt. Also the original execution issued thereon, and returned to March term, 1820, together with the return endorsed by A. Vanarsdalen, then Sheriff of Middlesex. Also the record of said execution, in the proper book of records of executions. Also an order or award of the Middlesex Pleas, in the book of minutes of said Court, made March term, 1834, ordering and awarding that a special scire facias should be issued, according to the statute, to show cause why a sale should not be made of the property levied on by Vanarsdalen, the former sheriff, he having died without having first sold the property thus levied on, and the execution being still unsatisfied. Also the special writ of scire facias issued pursuant to such order and award returned to June term, 1834, of the court, and the return of the sheriff thereon. The plaintiff also offered and read in evidence, in the book of judgments, the record of a regularly entered and recorded judgment of the court, upon the return of the special soire facias and the default of Manning, and also the entry in the minutes of the court at the same term.
    The plaintiff further offered and read in evidence the special writ, issued pursuant to the said judgment and order of the court, directed and delivered to A. Cruser the then sheriff — the return of the .sheriff — and the deed from the sheriff to the lessor of the plaintiff for the premises in question, dated the 8th of March, 1837. The above evidence was objected to by the defendant.
    The plaintiff farther proved that on the 16th of June, 1842, he served a written notice on the defendant to quit the premises in question immediately.
    The defendant offered and read in evidence exemplified proceedings of insolvency, on the petition of William B. Manning in 1831, and also an assignment by Manning to Dunham, pursuant to the statute, for the benefit of his creditors.
    The defendant then proved by J. S. Blauvelt, Esq., that both Robert Boggs and James Boggs, the executors named in the judgment first mentioned, were deceased, at and before the time of making the application for the order for issuing the special scire facias.
    The court then, on motion of the defendant’s counsel, overruled all the evidence previously offered in relation to the special scire facias, and all proceedings subsequently had thereon, and nonsuited the plaintiff; but at the same time granted a rule to show cause why the judgment of nonsuit should not be set aside, and a new trial had, in order to obtain the advisory opinion of the Supreme Court. A case was accordingly made and certified, of which the above comprises the substance.
    
      J. Van Dyhe for the plaintiff.
    
      J. W. Scott for the defendant.
   The opinion of the court was delivered by

Carpenter, J.

I am of opinion, that the nonsuit ought to be set aside and á new trial granted. The claim of the lessor of the plaintiff rests in the first place upon two deeds of conveyance, from the defendant Manning, in 1835. This claim was resisted upon the ground, that, prior to those conveyances, the title was out of Manning, and vested in the other defendant Dunham by virtue of certain proceedings in insolvency and an assignment; which proceedings and assignment were in 1831. But notwithstanding this assignment and the trust assumed by Dunham for the benefit of the creditors of Manning, the latter still continued in possession of the premises down to the very time of trial, a period of many years. Supposing this assignment and discharge of Manning as an insolvent properly in evidence, yet I am of the opinion that being set up as matter of defence, the judge should not have nonsuited the plaintiff, but it should have gone to the jury to pass upon the existence and fairness of the proceeding.

But besides this, the assignment to Dunham was in trust simply and only for the purpose of converting the property into money, as soon as could conveniently be done; which money, within eighteen months from the date of the assignment, it was his duty to divide pro rata among the creditors of Manning. Elm. Dig. 253, § 9. The possession and occupancy of the property would not seem to be necessary for the purposes of such a trust, and I do not see why, at any period, the assignee should be permitted to defend against the claim of a creditor. But certainly, after a lapse of more than eleven years from the date of the assignment, the matter of insolvency should have been left to the jury with instructions to presume, or at any rate with instructions that they might presume, that Dunham had executed his trust and released the land to Manning.

Tills view of the subject renders it unnecessary to look at that part of the case, which relates to the title of the plaintiff, as derived through the sale founded upon the special scire faoias. But I am of the opinion, that the court below erred, in permitting parol evidence to be offered to impiiach the judgment on the scire facias, by proving the decease of the parties before the suit brought. If admissible however, the court should not have non-suited the plaintiff, but it should have gone to the jury.

Court advised to set aside the nonsuit and grant a new trial.

Justices Eevitts and Randolph did not hear the argument, and expressed no opinion.  