"Some time thereafter, in December of that year or the next year, H. D. Benjamin received an injury, and after he had received that injury he seemed to have been physically incapable of being communicated with, to any large extent, and the case went to the supreme court where it was languishing until 1879, when it was decided in favor of Zell. The judgment which had been rendered on the verdict in favor of H. D. Benjamin became thereby reversed in the supreme court. It then came back again into this court in 1879 and was prosecuted to a verdict again, which resulted in favor of Mr. Zell. When this last verdict was obtained, there was a motion made for a new trial, and the case hung in this court on that motion from 1879 until the 31st of January, 1881. On that day, if I understand the evidence rightly, there was an attachment execution issued and served on Garret B. Stevens; a fi. fa. was issued at the same time. The property in question was levied upon and was condemned. It was afterwards sold on a vend. ex. which was issued subsequently to the fi. fa., and the property was sold to H. W. Bland for $5, which was appropriated to the payment of In pursuance of that sale on the 23d of April, 1881, Sheriff Gerhard, of this county, made a deed in favor of H. W. Bland, and Mr. Bland on the third day of August, 1881, deeded two of those lots.

costs.

"It seems that this property was regarded as four lots, each having a front apparently of nineteen feet; and two of those lots were deeded by Mr. Bland, the purchaser, to Thomas Zell. Mr. Bland was acting as the attorney in the former suit for Mr. Zell, and also in this execution; and Mr. Bland, as attorney, bought for his client, and afterwards conveyed it to him in one deed, dated August 3, 1881, and other deeds dated October 24, 1882, so that the property vested in Thomas Zell, in 1882, in October. Before that time, on the 7th day of September, 1881, Thomas Zell and wife conveyed the lots first conveyed to him by Mr. Bland, to one Hinchman; and he, on the 13th day of December, 1883, reconveyed these lots. It seems that Thomas Zell then became the owner of these two lots, and on the following day he and his wife conveyed them to Solomon Close and George W. Kershner, the plaintiffs in this case. "The case standing in this form, without anything else being shown, the title of this property would vest in the plaintiffs; and upon the plaintiffs' prima facie case there would be no question but that the jury would have to render a verdict in favor of plaintiffs. A plaintiff in ejectment must always recover on his own title. "When the case rested there and the plaintiffs were upon their prima facie case entitled to your verdict, the defendant said that so far as the plaintiffs' showing was concerned, their case could not be sustained in law. The defendant shows that there was a conveyance made by H. D. Benjamin while he was in possession of these lots on the 4th day of September, 1877, to one Noel H. Benjamin, the defendant herein.

"H. D. Benjamin was the defendant in the Zell suit; but in the suit here Noel H. Benjamin is the party against whom the ejectment is brought, who is admitted to be in possession of these lots. [H. D. Benjamin and wife made a

tember, 1877, which was a long time before there was a judgment entered in the case of Zell against Benjamin,—that first suit spoken of here as having terminated in 1879. The effect of the judgment of the supreme court in 1879 was the award of a venire facias de novo, which resulted in a new trial. This case, therefore, remained undetermined in 1879; and this deed of H. D. Benjamin to Noel H. Benjamin was made two years prior to 1879, and having been given about two years prior thereto, the defendant having a prior deed from H. D. Benjamin to the deed of the plaintiffs, instead of the plaintiffs being entitled to a verdict at that point the defendant, upon his own showing, would be entitled to a verdict at the hands of the jury.]

"The plaintiffs say that there is such a deed, but answer that the deed is void in law; and for that purpose they opened their rebutting case by calling Mr. Yarrington, who went along to the execution of the Noel H. Benjamin deed and witnessed it. There was no consideration passed for the deed in the presence of Mr. Yarrington, nor was the deed delivered in his presence. So far as his evidence is concerned he knew very little about the deed transaction.

"Mr. Snyder is called next. He testified that he was a notary public at that time, and that he took the acknowledgment of the deed of H. D. Benjamin to Noel H. Benjamin; that he saw no money pass, and no deed delivered there, and that Noel H. Benjamin was not present. There was therefore nothing elicited on the part of the witnesses, Yarrington and Snyder. But to further maintain their contention they called Noel H. Benjamin, who said he was a son of H. D. Benjamin, had met with a severe accident and was very sick therefrom, and that after having received that injury he could not be out of bed for a long time; that he made a deed to him, while he was bedfast, on the 4th of September, 1877; that he gave no money for it; in fact was a voluntary conveyance.

"By a voluntary conveyance is meant where one man makes a deed to another without giving anything for it. Where a man has debts at the time of making such a deed, he comes under the law which was enacted in England under the reign of Queen Elizabeth in the thirteenth year of her reign. It reads as follows, the law having been extended to this country: 'Be it declared, ordained and enacted, by authority of this present Parliament, that all and every feoffment, gift, grant, alienation, bargain and conveyance of land, tenements, hereditaments, goods and chattels or any of them by writing or otherwise, and every bond, suit judgment and execution at any time had or made sithence the beginning of the Queen's Majesty's reign that now is or at any time hereafter to be had or made to or for any intent or purpose before declared and expressed shall be from henceforth admitted and taken (only as against that person or persons, his or their heirs, successors, executors, administrators and assigns and every of them whose actions, suits, debts, accounts, damages, penalties, forfeitures, beriots, mortuaries and reliefs by such guileful, covinous or fraudulent devices and practices, as is aforesaid arc, shall, or might be in any way disturbed, hindered, delayed or defrauded) to

be clearly and utterly void, frustrated and of none effect. Any pretense, color, feigned consideration, expressing of use, or any other matter or thing to the contrary notwithstanding.' "The sum and substance of this Act is that where there is a fraudulent conveyance, or where there is a conveyance with intent to defraud, hinder or delay creditors from collect ing their debts, all such conveyances of land are void; and it has been held in England as well as in the State of Pennsylvania, more strenuously in New York, and I believe in several of the other States where it is considered that the Statute of Elizabeth is in force, that where there is a deed of this kind it is absolutely void, as against creditors it is also held to be absolutely void.

Where the deed is made with the intent to defraud, hinder and delay or defeat creditors it has been held to be void. This matter has been before our higher courts very frequently. Where a man has outstanding debts, makes a conveyance of his property so that his creditors may be hindered, delayed or defeated in the collection of their claims, the conveyance is absolutely void as to those creditors. If a man is indebted to another, and at the time makes a deed to another without consideration or without a valuable consideration, and the main intent and purpose is to defeat his creditors, such deed is void, although the land may have a record title in the name of another.

"If an execution is issued against a property to sell the right, title or interest of the man who was the owner, and he conveyed it thus to get it out of the reach of his creditors, such a sale brings a good title to the man buying and the man in whose favor the deed was made.

["Where there is a voluntary conveyance without consideration, the law presumes, in the absence of other proof, that there was a present intent to defeat creditors; but such a presumption is an inference from the facts supposed to exist, and is only what in the law is called presumptio juris, which may be rebutted by other and competent evidence.

"It is not of that class of presumptions which in the laws are called presumptio juris et de jure, which are said to be unrebuttable and unassailable in the law.]

"For instance: where one man is indebted to another, either of record or under seal, and twenty years have run without there being a renewal of the debt or a new promise, the law presumes that debt to have been paid, because it is reasonable to suppose that a man would not allow a debt to hang that long without having had satisfaction. Under the Statute of Limitations the presumption is that there was payment made; and this limitation of the law is made to help sustain the presumption.

[These presumptions in the law are intended for various uses: to prevent improper litigations, improper disputes, or prevent frauds that might be perpetrated if there was no such statutes. We say to you that while this is only one of that class of presumptions, the law presumes that it was with the intent to defeat creditors, and it is permissible for the courts to admit evidence to show that it was not the intent.]

"When the plaintiffs rested their case they were entitled to a verdict at your hands. The defendant, however, offered in evidence a deed

which is absolute upon its face and is recorded, and which changes the case. [At the point where the defendant rested the defendant would have been entitled to your verdict for the land described in the writ; but the plaintiffs rebutted that evidence by calling the witnesses, Yarrington, Snyder and Noel H. Benjamin, who says it was a voluntary conveyance to him without a consideration. So far as Noel knew, his father had no other property to pay any debts; that is, there was no other visible property or real estate left to pay any debts with. At that time, there being no real estate and no visible property for the payment of debts, the claim, as contended for by the plaintiffs, was in full force and effect. Of course it was in litigation. The one part claimed a considerable amount of money which was eventually recovered, and the other party said it was not owing at all; but as the final result turned out, there was a judgment for $2,350, so that the final event of the suit would show there was an actual existing debt. Where such is the case the testimony of Noel H. Benjamin becomes important. The law raises the presumption, because there was an outstanding debt at the time H. D. Benjamin conveyed this property without any payment of money, that it was a fraudulent conveyance, because if it existed, they, the plaintiffs' grantors, or those before them, would have been hindered or delayed in the collection of their debt, and because they would have been hindred or delayed in the collection of their debt, the law would presume that it was fraudulent and would make the deed void.

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This being however a presumptio juris it may be rebutted; and in order to continue the contention of the parties the defendant turns around and rebuts the rebutting case of the other party again.]

Before proceeding further with the case as it stood after these parties were examined with their record evidence, showing the disposal of the one property to Mr. Stevens, I want to say to you that the plaintiff would again be entitled to your verdict for the lands described in the writ."

"There is where the hitch in the case comes; up to this time the one or the other party would be entitled to a verdict.

"First the plaintiffs and then the defendant is entitled to a verdict; and then there is another showing which entitles the plaintiffs to a verdict.

["The defendant comes in again and asks leave to rebut, which is done by the evidence of H. D. Benjamin, from whom it was learned as well as in part from the cross examination of Noel H. Benjamin and Mr. Stevens, that at the time the conveyance was made to Noel H. Benjamin, H. D. Benjamin was sick in bed and expected to die, having received a very painful and serious injury; and being in expectation of dying, Geo. F. Baer, a member of this Bar, was called in to consult as to the making of a will and disposing of this property in contemplation of death, and while he was called, in speaking about a will, the question arose as to the expense of a will being made here. Mr. Benjamin, as soon as he could move with his family, intending to go to the State of New York, and upon the advice of Mr. Baer, instead of making a will, conveying this property; there was a

result and consequences of the coexisting motives, in order to form a proper criterion for directing the judgment which is to be formed upon the whole conduct. 1 Greenl. Ev. § 110.

Statements of a party in his own favor, out of court, are hearsay.

Id. § 99, note, 14th ed.

Shontz v. Brown, 27 Pa. 128.

Both of the writs were execution process; and the general rule is that you may have as many forms of execution as the law will afford, and may pursue them all at the same time until satisfaction be obtained on one of them.

Pontius v. Nesbit, 40 Pa. 311.

A levy on and sale of real estate on a fi. fa., does not avoid an execution attachment issued with the fi. fa.

Herriot v. Wagner, 9 Pittsb. Legal Jour. 109. Aside from this, after acknowledgment of sheriff's deed in open court, the title of the sheriff's vendee cannot be affected by mere irregularities, however gross.

McFee v. Harris, and Spragg v. Shriver, 25 Pa. 102, 282; Crowell v. Meconkey, 5 Pa. 168; Mitchell v. Freedley, 10 Pa. 208.

In a question of fraud the validity of the conveyance from father to the son depends, upon supplementary acts but upon the character of the contract when it was made.

United States v. Mertz, 2 Watts, 406; Kepner v. Burkhart, 5 Pa. 479–480.

Under section 2 of the Act of April 15, 1869, P. L. 60, when either party to the record is called as if under cross examination, they are subject to the same rules for examination as any other witness.

Where a witness is called by his adversary, as on cross examination, under the Act of April 15, 1869, § 2, leading questions may be put to him; and there may be drawn from him any facts or admissions which weaken his case and strengthen his adversary's.

The party so called is to be considered as if orriginally offered and examined on his own behalf.

Brubaker v. Taylor, 76 Pa. 83.

Cross examination should be confined to matters in regard to which the witness has been examined in chief, and to such questions as may show the bias and interest of the witness. Hopkinson v. Leeds, 78 Pa. 400; Hughes v. Westmoreland Coal Co. 104 Pa. 207; Fulton v. Bank of Pittsburg, 92 Pa. 112; Floyd v. Bocard, 6 Watts & S. 75.

Evidence having reference to a transaction long after the conveyance, and not of the character of the contract at the time of the conveyance, and consisting only of declarations of a party charged with the fraudulent conveyance, is not admissible.

U. S. v. Mertz, 2 Watts, 407-409.

The declarations offered in evidence must be concomitant with the principal act, as the mere 3 PA. C. R., V. VII.

Hanson v. Eustace, 2 How. 688, 689 (See note, bk. 11, L. ed. 430); McKibbin v. Martin, 64 Pa. 256.

Actual fraud is always a question for the jury; legal fraud, where the facts are undisputed or are ascertained, is for the court.

Dornick v. Reichenback, 10 Serg. & R. 90; Avery v. Street, 6 Watts, 247.

A conveyance by a father to his sons, in trust for the payment of all the judgments on record against the grantor, and for his maintenance and that of the family, is void as to creditors.

Johnston v. Harvy, 2 Penr. & W. 82. See also McAllister v. Marshall, 6 Binn. 338, in which a tacit agreement to vest a part of the property in trustees, for the benefit of the family, avoided the conveyance as to creditors who had not assented to the agreement.

In such a case the fraud is matter of law and should be so declared by the court. Geiger v. Welsh, 1 Rawle, 349; Hack v. Stewart, 8 Pa. 213.

A conveyance by one indebted, in trust to sell, the grantor reserving a power of appointment of the proceeds, is fraudulent as to a prior creditor recovering judgment after the grantor had appointed the proceeds to creditors.

Mitchell v. Stiles, 13 Pa. 307; Whallon v. Scott, 10 Watts, 237; Sheerer v. Lautzerheizer, 6 Watts, 549; Hack v. Stewart, 8 Pa. 217.

A conveyance by one indebted, in consideration of a debt due, and the residue of the consideration secured by judgment bonds, payable within six years, which were intended to be applied to pay creditors, is fraudulent with| in the Statute of 13 Elizabeth.

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