Opinion by
Mb,. Justice Gbeen,
First and second assignments. There is no doubt that the transaction between Andrew L. Kitchen and Pennington after the levy, when Kitchen refunded to Pennington the money which Pennington had paid him for the horse, was a rescission of the sale of the horse by Kitchen to Pennington. As between them Kitchen thereby became entitled to the possession of the horse and also to the property in him. Pennington did not have the possession as the horse had been taken by the sheriff under his levy. When he accepted from Kitchen the monej' for the price of the horse, he no longer had any title in the horse or any right of possession. The property in the horse, after the rescission, was vested again in Kitchen, and the right to have the possession followed the title and could be asserted as against any wrong-doer. No actual delivery of possession by Pennington to Kitchen was necessary to perfect Kitchen’s title. Creps v. Dunham, 69 Pa. 456. The authorities cited by the learned counsel of the appellant in his argument upon the first and second assignments are undoubtedly correct and certainly apply in all cases where there was a levy and no change of title between the levy and the sale. But the sale by the sheriff, of goods levied upon by him and claimed by a stranger, is a distinct and substantial trespass which entitles the real owner to his remedy by action of trespass. In the present case the sale was not made until after Pennington had parted with his title by the rescission of the contract of purchase between Kitchen and Pennington. He no longer had any kind of title in the horse and Kitchen became the owner of any title which Pennington had prior to the act of rescission. As there is no other claimant of the title of Pennington, any [383]*383right of action which he may have had passed to Kitchen by virtue of the rescission. It is clear that Pennington could maintain no action against the sheriff in such circumstances, and we know of no reason why Kitchen might not assert his right of property by an action based upon the act of trespass committed by the sheriff in selling the horse thereafter.
In. the case of Dixon v. White Sewing Machine Co., 128 Pa. 397, we held that to maintain trespass for a mere levy upon the goods of a stranger the plaintiff must have had, at the time of the levy, either actual possession or the right to take possession, but for a sale of the goods an action may be supported upon a reversionary or conditional right of possession. In that ease Dinkle as agent for the plaintiff claiming the goods—organs—had made conditional sales in the form of leases, under which the organs had been delivered to the proposed purchasers and were in their possession at the time of the levy. They ha.d been levied on by Dinkle’s creditors, who claimed they were his property. The sheriff returned that he had levied on Dinkle’s interest in them and had sold only that interest, and it was claimed for the defendant, the sheriff, that as only Dinkle’s interest was sold, and that, at the time of the levy, the goods were in possession of other parties, the conditional purchasers, the action could not.be maintained. Our brother Mitchell, meeting this objection, and recognizing the familiar doctrine that the plaintiff in an action of trespass must have the possession or right of possession at the time of the levy, said: “But Dinkle either for himself or as agent of the plaintiff had still a title in the organs, to which a reversionary and conditional right of possession attached, and a sale of the goods themselves by the sheriff would be such an interference with this title and consequent right of possession as would support an action.” This distinction is quite correct and would seem to be applicable to the rather unusual facts that are present in this case. At the time of the levy, Pennington was the owner and in possession, and if there were no change in the situation, no action could have been maintained by Kitchen. But his action was not brought until after the sale by the sheriff, and at that time, he, if he was the true owner of the horse, is the only person injured and his injury was occasioned by the sale. Pennington had [384]*384no interest of any kind either in the possession, or in the property at the time of the sale, or at the time of the action brought. Kitchen was the owner, if his title were good, and being the only person injured he was clearly entitled to bring the action. No action had been brought by any one for the disturbance of the possession by the levy, and as the sale was an undoubted trespass, as against Kitchen, he alone had the right of action. The first and second assignments of error are not sustained.
Third and fourth assignments. The third point of the defendant is undoubtedly sound, and might have been affirmed as a mere abstract proposition. The only reason why it was not affirmed was because the learned court below was of opinion that there was no evidence in the cause which would have justified the submission to the jury of the question of fact which was involved in the point. After a most careful reading of the testimony we are of opinion that the learned court was entirely correct in this view of the testimony. We really cannot see any foundation of fact in the testimony upon which to base either a charge of an intent, in the confession of the judgment, to hinder, delay and defraud the creditors of Joseph Kitchen, or that there was fraud in fact either in the giving of the judgment, or in the sale under the execution. There is not a scrap of testimony to impugn the full actual consideration of the judgment. The magistrate who entered the judgment testified fully to every fact and circumstance attending its confession and entry. He said the defendant in the judgment called upon him and said he was indebted to his brother, A. L. Kitchen, that he could not pay him and wanted to make as little costs as possible and therefore he wanted to confess a judgment in his favor for the amount of the debt. The justice inquired as to the consideration and was informed as to the whole of it, that the defendant owed his brother for three notes he held against him and a book-account. The amount was footed up and judgment confessed for the whole. Afterwards on the same day he met the plaintiff and inquired of him about it and said he would require the notes to be delivered to him, the justice, as they were “ docket property.” On the same evening A. L. Kitchen brought him the notes and left them with him and directed him to issue an execution the next day. [385]*385The notes themselves were produced in court and given in evidence. They are all judgment notes, given at different times, for different sums, all of which were small, and executed under seal. One of them w-as given to the wife of A. L. Kitchen and by her transferred to her husband. There was not a fragment of testimony in the cause to impeach the consideration of the notes or of the judgment. Being executed under seal they imported consideration. We discover nothing in the circumstances attending the confession of the judgment, in any degree suspicious or inconsistent with perfect good faith. It was the right of the defendant to confess the judgment in favor of his brother if he honestly owed him the money, and equally the right of the brother to receive the confession and issue execution for the collection of the money, without being chargeable with fraud because the defendant was his brother.
In the case of Reehling v. Byers, 94 Pa. 816, Mr.
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Opinion by
Mb,. Justice Gbeen,
First and second assignments. There is no doubt that the transaction between Andrew L. Kitchen and Pennington after the levy, when Kitchen refunded to Pennington the money which Pennington had paid him for the horse, was a rescission of the sale of the horse by Kitchen to Pennington. As between them Kitchen thereby became entitled to the possession of the horse and also to the property in him. Pennington did not have the possession as the horse had been taken by the sheriff under his levy. When he accepted from Kitchen the monej' for the price of the horse, he no longer had any title in the horse or any right of possession. The property in the horse, after the rescission, was vested again in Kitchen, and the right to have the possession followed the title and could be asserted as against any wrong-doer. No actual delivery of possession by Pennington to Kitchen was necessary to perfect Kitchen’s title. Creps v. Dunham, 69 Pa. 456. The authorities cited by the learned counsel of the appellant in his argument upon the first and second assignments are undoubtedly correct and certainly apply in all cases where there was a levy and no change of title between the levy and the sale. But the sale by the sheriff, of goods levied upon by him and claimed by a stranger, is a distinct and substantial trespass which entitles the real owner to his remedy by action of trespass. In the present case the sale was not made until after Pennington had parted with his title by the rescission of the contract of purchase between Kitchen and Pennington. He no longer had any kind of title in the horse and Kitchen became the owner of any title which Pennington had prior to the act of rescission. As there is no other claimant of the title of Pennington, any [383]*383right of action which he may have had passed to Kitchen by virtue of the rescission. It is clear that Pennington could maintain no action against the sheriff in such circumstances, and we know of no reason why Kitchen might not assert his right of property by an action based upon the act of trespass committed by the sheriff in selling the horse thereafter.
In. the case of Dixon v. White Sewing Machine Co., 128 Pa. 397, we held that to maintain trespass for a mere levy upon the goods of a stranger the plaintiff must have had, at the time of the levy, either actual possession or the right to take possession, but for a sale of the goods an action may be supported upon a reversionary or conditional right of possession. In that ease Dinkle as agent for the plaintiff claiming the goods—organs—had made conditional sales in the form of leases, under which the organs had been delivered to the proposed purchasers and were in their possession at the time of the levy. They ha.d been levied on by Dinkle’s creditors, who claimed they were his property. The sheriff returned that he had levied on Dinkle’s interest in them and had sold only that interest, and it was claimed for the defendant, the sheriff, that as only Dinkle’s interest was sold, and that, at the time of the levy, the goods were in possession of other parties, the conditional purchasers, the action could not.be maintained. Our brother Mitchell, meeting this objection, and recognizing the familiar doctrine that the plaintiff in an action of trespass must have the possession or right of possession at the time of the levy, said: “But Dinkle either for himself or as agent of the plaintiff had still a title in the organs, to which a reversionary and conditional right of possession attached, and a sale of the goods themselves by the sheriff would be such an interference with this title and consequent right of possession as would support an action.” This distinction is quite correct and would seem to be applicable to the rather unusual facts that are present in this case. At the time of the levy, Pennington was the owner and in possession, and if there were no change in the situation, no action could have been maintained by Kitchen. But his action was not brought until after the sale by the sheriff, and at that time, he, if he was the true owner of the horse, is the only person injured and his injury was occasioned by the sale. Pennington had [384]*384no interest of any kind either in the possession, or in the property at the time of the sale, or at the time of the action brought. Kitchen was the owner, if his title were good, and being the only person injured he was clearly entitled to bring the action. No action had been brought by any one for the disturbance of the possession by the levy, and as the sale was an undoubted trespass, as against Kitchen, he alone had the right of action. The first and second assignments of error are not sustained.
Third and fourth assignments. The third point of the defendant is undoubtedly sound, and might have been affirmed as a mere abstract proposition. The only reason why it was not affirmed was because the learned court below was of opinion that there was no evidence in the cause which would have justified the submission to the jury of the question of fact which was involved in the point. After a most careful reading of the testimony we are of opinion that the learned court was entirely correct in this view of the testimony. We really cannot see any foundation of fact in the testimony upon which to base either a charge of an intent, in the confession of the judgment, to hinder, delay and defraud the creditors of Joseph Kitchen, or that there was fraud in fact either in the giving of the judgment, or in the sale under the execution. There is not a scrap of testimony to impugn the full actual consideration of the judgment. The magistrate who entered the judgment testified fully to every fact and circumstance attending its confession and entry. He said the defendant in the judgment called upon him and said he was indebted to his brother, A. L. Kitchen, that he could not pay him and wanted to make as little costs as possible and therefore he wanted to confess a judgment in his favor for the amount of the debt. The justice inquired as to the consideration and was informed as to the whole of it, that the defendant owed his brother for three notes he held against him and a book-account. The amount was footed up and judgment confessed for the whole. Afterwards on the same day he met the plaintiff and inquired of him about it and said he would require the notes to be delivered to him, the justice, as they were “ docket property.” On the same evening A. L. Kitchen brought him the notes and left them with him and directed him to issue an execution the next day. [385]*385The notes themselves were produced in court and given in evidence. They are all judgment notes, given at different times, for different sums, all of which were small, and executed under seal. One of them w-as given to the wife of A. L. Kitchen and by her transferred to her husband. There was not a fragment of testimony in the cause to impeach the consideration of the notes or of the judgment. Being executed under seal they imported consideration. We discover nothing in the circumstances attending the confession of the judgment, in any degree suspicious or inconsistent with perfect good faith. It was the right of the defendant to confess the judgment in favor of his brother if he honestly owed him the money, and equally the right of the brother to receive the confession and issue execution for the collection of the money, without being chargeable with fraud because the defendant was his brother.
In the case of Reehling v. Byers, 94 Pa. 816, Mr. Justice Gordon, in the case of a transfer of real estate from a son nearly or quite insolvent, to his father, said: “Business dealings between parents and children and other near relatives, are not per se fraudulent. They must be treated just as are the transactions between ordinary debtors and creditors. As in the latter case, where the bona fides of such transactions is attacked, the fraud alleged must be clearly and distinctly proved, so likewise in the former.” The judgment of the court below was reversed because the question of fraud was submitted to the jury, when in the opinion of this court there was no evidence sufficient to warrant such submission.
Some very trivial circumstances were claimed by the appellant, in the present case, to be evidence of fraud, such as the fact that Joseph R. Kitchen came to the office of the justice alone and without any books and papers when he confessed the judgment, that only a few persons were present at the sale, a- part of whom were near relatives, that there was a dispute about one or two bids, that the horses sold were worth considerably more than they brought at the sale, and that the sale was completed in about twenty minutes. Such facts as these constantly transpire at judicial sales, but unless there is some kind of proof showing, or tending to show, actual fraud in the transaction, they are not of the slightest significance and of themselves prove nothing worthy the consideration of a jury. [386]*386The solemn judgments and executions of creditors are not to be swept away by any such testimony as this without some kind of substantial proof. The third and fourth assignments are not sustained.
The fourth point of the defendant asked the court to charge that the constable’s sale was void in law, because there were no persons present at the sale, “ but the plaintiff and defendant who were brothers, and their brother and nephew, the constable and his clerk.” As a matter of course such a point could not have been affirmed without grave error and it was therefore refused. In point of fact other persons were present at the sale and so testified. The fifth assignment is not sustained.
Sixth assignment. The only object of the offer to give other judgments against Joseph R. Kitchen in evidence, was to show that he was in debt to other persons at the time he confessed the judgment. As the mere fact of other indebtedness would not invalidate, or even tend to invalidate, the judgment confessed to A. L. Kitchen, without some other evidence tending to impeach the good faith of the transaction, the offer was not competent. As we have often held, one who is in debt to different persons may give a preference to any one, and the fact of the other indebtedness weighs nothing against the validity of the preference. The sixth assignment is not sustained.
The court below was not asked to give a binding instruction for the defendant and there is therefore nothing to sustain the seventh assignment.
Judgment affirmed.