Opinion by
Rice, P. J.,
This was an action of trespass, brought by B. Berwald against the sheriff, for the sale of a stock of merchandise, on a fi. fa. issued by L. & C. Wise against R. Berwald, the plaintiff’s father. It is urged, that the court erred in not submitting the questions as to the plaintiff’s ownership, and notice to the sheriff, to the jury. The assignments of error relating to these matters require a review of the testimony, at some length.
The plaintiff alleges, that prior to July, 1889, his mother, whose name is Rachel, was the owner of a retail shoe business in Oil City, conducted in. the. name of “R. Berwald” by-her husband L. R. or R. Berwald. The? merchandise in this store [377]*377was seized under a testatum fi. fa. issued on a judgment against “ R. Berwald,” and the sheriff returned, that on July 15,1889, he sold the same “ to sundry parties, which will fully appear by reference to sheriff’s sale book No. 4.” This book was produced on the trial and showed that, for the most part, the goods were bid in by the attorney who issued the writ. According to his undisputed testimony he was acting for A. Marks, the legal plaintiff in the judgment. The latter, by bill of sale dated August 3, 1889, transferred his title to B. Berwald, the plaintiff in tins suit.
The plaintiff did not offer himself as a witness but his mother testified that about five years before this sale her mother had given to her brother, A. Marks, between $2,600 and $3,000 for her son Benjamin, the plaintiff; that out of this sum he took his pay for the goods transferred to Benjamin by the bill of sale; and £hat with what remained, $1,120, she bought for her son an additional stock of goods, which were put in the store.
At the time of these transactions, Benjamin was sixteen or seventeen years of age and was learning the barber’s trade; at which he continued to work until the time of the trial. His father, L. R. or “ R. Berwald ” — as he sometimes signed his name — continued in possession of the shoe store, and conducted the business in substantially the same manner as before the sheriff’s sale.
In the following year he bought goods of L. & C. Wise in the name of B. Berwald, and to secure credit gave his continuing guarantee of an indebtedness not exceeding the sum of $300.
In December, 1890, L. & C. Wise commenced suit for indebtedness thus incurred, against R. Berwald and B. Berwald, by an attachment under the act of 1869; goods in the store were taken possession of and removed by the sheriff; and on June 23, 1891, a rule for judgment for want of a sufficient affidavit of defense was made absolute as against R. Berwald for the sum of $300, and discharged as to B. Berwald. A fi. fa. was issued, by virtue of which the sheriff levied upon, and sold, the goods in his hands under the attachment. B. Berwald then brought this action of trespass.
The learned judge correctly held, that where the sheriff levies upon and sells the goods of B. upon an execution against R. the former may maintain an action of trespass without proof [378]*378of other facts ; to escape liability the sheriff must show that the real owner was estopped by some act of omission or commission. We also think he committed no error in instructing the jury that there was no evidence in the case which would warrant the jury in finding that the plaintiff was estopped from claiming these goods as his own, and maintaining the action, if in truth he was the owner. The reasons for this conclusion as applied to the special facts of the case are sufficiently stated in the charge and need not be elaborated. The fourth, fifth and sixth assignments are overruled.
But where the goods were in the possession of the defendant in the execution, and that possession was apparently exclusive, the burden of proving ownership is, of course, cast on the plaintiff in the action of trespass. He must overcome the prima facie presumption arising from the possession by affirmative evidence ; and even though his witnesses testify to all the facts necessary to establish his ownership, yet, as his case depends upon their credibility, the question must in general be submitted to the jury: Lautner v. Kann, 184 Pa. 334; Grambs v. Lynch, 4 Penny. 243; Shober v. Harrison, 3 Pa. Superior Ct. 188, 195; Kircher v. Sprenger, 4 Pa. Superior Ct. 38. Where, however, he derives title from a judicial sale, the record of which is put in evidence, the burden is then cast on the sheriff. If, therefore, the action had been for the sale of ■ the goods bought by A. Marks at the sheriff’s sale in July, 1889, no person connected with this case would be in a position to dispute his title or the validity of his transfer to the plaintiff. Marks might have made a valid gift of the property to the plaintiff; hence so far as the latter’s title thereto was concerned it was not necessary to prove the consideration for the transfer. It was sufficient to show, as against persons who became creditors of R. Berwald after-wards, that there was a legal transfer — whether by gift or otherwise was immaterial — from Marks to the plaintiff.
It is to be observed, however, that there was no attempt to show that the goods levied upon under the L. & C. Wise writ were the identical goods bought by Marks at the sheriff’s sale in 1889, and by him transferred to the plaintiff. The plaintiff’s contention was, that with these goods and the $1,120 worth of goods referred to in his mother’s testimony, his father opened and carried on the business as his (the plaintiff’s) agent, and [379]*379for bis benefit; and that the goods levied upon had been acquired in the business thus carried on. Assuming these facts, the goods were not liable to seizure under this execution. But were they the facts ? They Avere not admitted by the defendant, nor Avas he estopped to demand affirmative proof of them. They rested in parol, and although there was no contradictory testimony of a direct nature, there Avas circumstantial evidence Avhich had a tendency to weaken the probability of the plaintiff’s allegations, and as the burden of proving that R. Berwald was acting simply as agent or trustee rested on the plaintiff, the defendant had a right to have the questions of fact submitted to, and decided by, the constitutional tribunal. It is not within our province to comment on the credibility of the testimony of the plaintiff’s father and mother; it is sufficient for us to say that in view of all the attendant circumstances— to say nothing of the extraordinary nature of some of the statements — the jury were not bound to accept it as absolute verity. It was for the jury to determine what credit was to be given to it. The controlling question, therefore, Avas not, whether the alleged transactions were fraudulent per se as to creditors but whether the facts were as alleged by the plaintiff. Was the actual beneficial ownership of the goods levied upon in B. Berwald or was it in R..Berwald? This was a mixed question of law and fact and should have been submitted to the jury with appropriate instructions. The first, third, seventh and thirteenth assignments are sustained.
The second and ninth assignments are OArerruled. Many of the facts and circumstances referred to in the last mentioned assignment would have been relevant to the question we have just stated, and the ruling as explained by the learned judge did not prevent the defendant from proving them for that purpose. We think he was right, hoAvever, in holding that the validity of the sheriff’s sale under the testatum fi. fa. could not be attacked in this suit.
L. R.
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Opinion by
Rice, P. J.,
This was an action of trespass, brought by B. Berwald against the sheriff, for the sale of a stock of merchandise, on a fi. fa. issued by L. & C. Wise against R. Berwald, the plaintiff’s father. It is urged, that the court erred in not submitting the questions as to the plaintiff’s ownership, and notice to the sheriff, to the jury. The assignments of error relating to these matters require a review of the testimony, at some length.
The plaintiff alleges, that prior to July, 1889, his mother, whose name is Rachel, was the owner of a retail shoe business in Oil City, conducted in. the. name of “R. Berwald” by-her husband L. R. or R. Berwald. The? merchandise in this store [377]*377was seized under a testatum fi. fa. issued on a judgment against “ R. Berwald,” and the sheriff returned, that on July 15,1889, he sold the same “ to sundry parties, which will fully appear by reference to sheriff’s sale book No. 4.” This book was produced on the trial and showed that, for the most part, the goods were bid in by the attorney who issued the writ. According to his undisputed testimony he was acting for A. Marks, the legal plaintiff in the judgment. The latter, by bill of sale dated August 3, 1889, transferred his title to B. Berwald, the plaintiff in tins suit.
The plaintiff did not offer himself as a witness but his mother testified that about five years before this sale her mother had given to her brother, A. Marks, between $2,600 and $3,000 for her son Benjamin, the plaintiff; that out of this sum he took his pay for the goods transferred to Benjamin by the bill of sale; and £hat with what remained, $1,120, she bought for her son an additional stock of goods, which were put in the store.
At the time of these transactions, Benjamin was sixteen or seventeen years of age and was learning the barber’s trade; at which he continued to work until the time of the trial. His father, L. R. or “ R. Berwald ” — as he sometimes signed his name — continued in possession of the shoe store, and conducted the business in substantially the same manner as before the sheriff’s sale.
In the following year he bought goods of L. & C. Wise in the name of B. Berwald, and to secure credit gave his continuing guarantee of an indebtedness not exceeding the sum of $300.
In December, 1890, L. & C. Wise commenced suit for indebtedness thus incurred, against R. Berwald and B. Berwald, by an attachment under the act of 1869; goods in the store were taken possession of and removed by the sheriff; and on June 23, 1891, a rule for judgment for want of a sufficient affidavit of defense was made absolute as against R. Berwald for the sum of $300, and discharged as to B. Berwald. A fi. fa. was issued, by virtue of which the sheriff levied upon, and sold, the goods in his hands under the attachment. B. Berwald then brought this action of trespass.
The learned judge correctly held, that where the sheriff levies upon and sells the goods of B. upon an execution against R. the former may maintain an action of trespass without proof [378]*378of other facts ; to escape liability the sheriff must show that the real owner was estopped by some act of omission or commission. We also think he committed no error in instructing the jury that there was no evidence in the case which would warrant the jury in finding that the plaintiff was estopped from claiming these goods as his own, and maintaining the action, if in truth he was the owner. The reasons for this conclusion as applied to the special facts of the case are sufficiently stated in the charge and need not be elaborated. The fourth, fifth and sixth assignments are overruled.
But where the goods were in the possession of the defendant in the execution, and that possession was apparently exclusive, the burden of proving ownership is, of course, cast on the plaintiff in the action of trespass. He must overcome the prima facie presumption arising from the possession by affirmative evidence ; and even though his witnesses testify to all the facts necessary to establish his ownership, yet, as his case depends upon their credibility, the question must in general be submitted to the jury: Lautner v. Kann, 184 Pa. 334; Grambs v. Lynch, 4 Penny. 243; Shober v. Harrison, 3 Pa. Superior Ct. 188, 195; Kircher v. Sprenger, 4 Pa. Superior Ct. 38. Where, however, he derives title from a judicial sale, the record of which is put in evidence, the burden is then cast on the sheriff. If, therefore, the action had been for the sale of ■ the goods bought by A. Marks at the sheriff’s sale in July, 1889, no person connected with this case would be in a position to dispute his title or the validity of his transfer to the plaintiff. Marks might have made a valid gift of the property to the plaintiff; hence so far as the latter’s title thereto was concerned it was not necessary to prove the consideration for the transfer. It was sufficient to show, as against persons who became creditors of R. Berwald after-wards, that there was a legal transfer — whether by gift or otherwise was immaterial — from Marks to the plaintiff.
It is to be observed, however, that there was no attempt to show that the goods levied upon under the L. & C. Wise writ were the identical goods bought by Marks at the sheriff’s sale in 1889, and by him transferred to the plaintiff. The plaintiff’s contention was, that with these goods and the $1,120 worth of goods referred to in his mother’s testimony, his father opened and carried on the business as his (the plaintiff’s) agent, and [379]*379for bis benefit; and that the goods levied upon had been acquired in the business thus carried on. Assuming these facts, the goods were not liable to seizure under this execution. But were they the facts ? They Avere not admitted by the defendant, nor Avas he estopped to demand affirmative proof of them. They rested in parol, and although there was no contradictory testimony of a direct nature, there Avas circumstantial evidence Avhich had a tendency to weaken the probability of the plaintiff’s allegations, and as the burden of proving that R. Berwald was acting simply as agent or trustee rested on the plaintiff, the defendant had a right to have the questions of fact submitted to, and decided by, the constitutional tribunal. It is not within our province to comment on the credibility of the testimony of the plaintiff’s father and mother; it is sufficient for us to say that in view of all the attendant circumstances— to say nothing of the extraordinary nature of some of the statements — the jury were not bound to accept it as absolute verity. It was for the jury to determine what credit was to be given to it. The controlling question, therefore, Avas not, whether the alleged transactions were fraudulent per se as to creditors but whether the facts were as alleged by the plaintiff. Was the actual beneficial ownership of the goods levied upon in B. Berwald or was it in R..Berwald? This was a mixed question of law and fact and should have been submitted to the jury with appropriate instructions. The first, third, seventh and thirteenth assignments are sustained.
The second and ninth assignments are OArerruled. Many of the facts and circumstances referred to in the last mentioned assignment would have been relevant to the question we have just stated, and the ruling as explained by the learned judge did not prevent the defendant from proving them for that purpose. We think he was right, hoAvever, in holding that the validity of the sheriff’s sale under the testatum fi. fa. could not be attacked in this suit.
L. R. Berwald testified that 433 pairs of shoes were seized ; that their cost price was over $1,100 ; that they were “ a fine make of shoes; Rochester make and a good many other makes; ” that “ some cost $3.60, some $3.50, $3.18, and so on; ” that the stock in the store “were all fine new goods.” In view of this testimony it was competent for the defendant to ask a witness [380]*380who was in the same business, who knew the market prices and who had inspected the stock but a week before, whether the stock was as described by Berwaid and whether he had any such shoes as he testified were seized hy the sheriff.
Probably no great injury was caused by the rejection of these offers as in the latter part of his examination greáter latitute was allowed, but as the case goes back for a new trial it is proper to say that the evidence was admissible. The tenth and eleventh assignments are sustained.
If the defendant had offered to produce all the hills, the offer referred to in the twelfth assignment might have been competent for the- purpose stated. But a part of the bills might show that the shoes referred to in them did not cost what the witness said these shoes cost without necessarily contradicting him. There was no error in rejecting this offer and the assignment is overruled.
The judgment is reversed and a venire facias de novo awarded.