
    SCHRAM AND SERVICE vs. OLMSTEAD.
    Where a deed and a purchase money mortgage, bearing'dáte March 21st, were recorded on April 9th, but the acknowledgment of the-mortgage was dated April 10th, it was not error for tne Court in a. collateral proceeding to leave it to the jury to determine the date, of acknowledgment.
    Error to Common Pleas of Elk Comity. No. 124, January Term, 1882.
    Albert Willis in his lifetime owned an individual half of lots. 21 and 22 in Souther’s Plan of Ridgeway, and made a- contract to sell the same to Salyer Jackson. In pursuance of this contract, and an order of the Orphans’ Court of Elk County, Carrie D. Willis, Administratrix of Albert Willis, made a deed, to Salyer Jackson, datéd March 21, 1872, for the property. Salyer Jackson executed a mortgage to Carrie D. Willis for $600, balance of purchase money due, which was enetred for record on April 10th, 1872. Salyer Jackson conveyed the land to W. H. Schram and W. S. Service by deed dated October 17th, 1872. On March 12, 1875, Schram conveyed the undivided one-fourth to Service for $1, but it was alleged that Service was to pay the Willis mortgage. On November 5, 1875, Service conveyed the individual half to S. A. Olmstead. In the Spring of 1877 a scire facias was issued upon the Willis, mortgage, and a judgment obtained, and execution issued and the property was sold to W. H. Osterhout on November 18, 1878. S. A. Olmstead afterwards took a lease from Osterhout, and brought suit against Schram and Service upon the warrant in the deed. The Court refused to instruct the jury that the acknowledgment dated April 10th, 1872, invalidated, the mortgage recorded April 9th, 1872; but left it to the jury to determine what was the true date of the acknowledgment. The Court refused to instruct the jury that the sale by Service to Olmstead was fraudulent, but left the question to the jury.. The defendants also objected to the admission of the mortgage in evidence on the ground that there was no authority-shown for Carrie D. Willis to take the mortgage. The Court charged that if there was an eviction and Olmstead was not a party to any fraud, he could recover the amount of the money he paid with interest. On January 25, 1881, the jury rendered a verdict for plaintiff for $1,668.21. Defendants then took this writ of error.
    
      Messrs Hall and McCauley, for plaintiffs in error,
    argued that the mortgage was invalid; Heister vs. Fortner, 2 Binn, 40; Simon vs. Brown, 3 Yates, 186; Green vs Drinker, 7 W. & S., 440. The sale to Olmstead was to protect the property of Service from his creditors and should have been held to be fraudulent by the Court; Garrison vs. Monaghan, 33 Pa., 232; Shoutz vs. Brown, 27 Pa., 123; Reinheimer vs. Hemingway, 35 Pa., 437; Byrod’s Appeal 31 Pa., 241.
    
      Messrs. Lucore and Hamblen, contra,
    
    argued that by the deed from Salyer Jackson, Schram and Service took the property subject to and with notice of the mortgage. Strauss Appeal, 49 Pa., 353; Jermon vs. Lyon, 2 W. N. C., 606; Heist vs. Baker, 49 Pa., 9. The question of fraud was for the jury; Ferris vs. Irons, 83 Pa., 179; Loucheim vs. Henzey, 77 Pa., 303; McKibben vs. Martin, 64 Pa., 352. The conveyance would only be void as to creditors; Brown vs. Scott, 51 Pa., 357; Harlan vs. Maglaughlin, 9 W. N. C, 353; Kimble vs. Smith, 9 W. N. C., 357
   The Supreme Court affirmed the judgment of the Common Pleas on February 27, 1882, in the following opinion:

Per Curiam. .

The only question of fact upon which the defense rested below, was that the deed of Service to Olmstead of November 5, 1875, was in fraud of creditors, and Schram being a creditor of Service, could set up that in answer to his demand for damages in this action of covenant. Conceding this, the question of fraud in that conveyance was surely a question for the jury, as fraud in fact always is. There was nothing on the face of the deed from which fraud in law could be inferred. It would depend upon extraneous circumstances. This question was fairly submitted. We see no error in the other specifications.

Judgment affirmed.  