was induced by counsel for the Bradford. Gas Company and was made over the objection of counsel for plaintiff. To make this error the ground of reversal would work a hardship on appellee company which had protested against it and would give an unfair advantage to the party inducing it. This ought not to be permitted unless imperatively required by rules of practice or of law. [5] We think the rule announced in some of the federal courts is sound and covers this case. It was held in the United States Circuit Court of Appeals that: "They had not invited the error of that ruling, but had protested against it. This was all they could do. The plaintiffs had induced the court to commit an error, and were thereby prohibited from availing themselves of it in any court of review." Salt Lake City v. Smith, 104 Fed. 457, 43 C. C. A. 637. The application of the rule depends to some extent upon the facts of each particular case, and there may be cases in which it could not be applied without doing violence to established rules of law. In the present case no such barrier exists. The Bradford Gas Company did not rely on the ruling of the court limiting the effect of the testimony of this witness, but undertook on cross-examination to strengthen its case by showing that Whitney had told its representative that he had no notice at the time of the purchase from Sherwood of the prior deed to plaintiff. This was the crux of the case and the point toward which the whole examination was directed. The Bradford Gas Company had the benefit of his answer and made it part of its defense. Under these circumstances we think it must be held to have waived the limitation it induced the court to make, and that it made the witness competent for the general purposes of the case. The trial judge in such cases has a large measure of discretion and may permit parties to elicit material facts in order to ascertain the truth without regard to the technical consideration of who called the witness. Gantt v. Cox & Sons Co., 199 Pa. 208, 48 Atl. 992. This was the substantial result of what was done in the present case. The ruling complained of was practically disregarded, and the witness was examined by all parties with a view of ascertaining the truth. The court approved of this course of procedure as indicated by subsequent rulings and by questions frequently asked from the bench. As we view the record there was a just and fair trial upon the merits, and we see nothing to warrant a reversal upon technical grounds. The question as to constructive notice need not be discussed, because the evidence was ample to show actual notice, and the verdict of the jury establishes the fact. Judgment affirmed. 807 (232 Pa. 625) HOWARD V. STILLWAGON et al. (Supreme Court of Pennsylvania. July 6, 1911.) VENDOR AND PURCHASER (§ 335*)-REMEDIES OF PURCHASER-RECOVERY OF PURCHASE MONEY PAID. Plaintiff agreed to buy and defendants to sell property, the price to be paid partly in cash and partly in stated installments, with interest, to secure which payment defendants were authorized to enter judgment for the sum due, or to confess judgment in ejectment against plaintiff on his failure to pay. The agreement also provided that on any default it should be void, as to the sellers, at their option. Part payments were made on the principal, together with interest, after they were due, but were acceptwithout notice that no further indulgence would ed without protest. Subsequently the sellers, be granted, and without tendering a deed and demanding the balance of the price, entered judg the property. Held, that the defendants rescindment in ejectment, and were put in possession of ed their contract, and could no longer derive any benefit therefrom, and were bound to place. plaintiff in statu quo by returning the price received. Purchaser, Cent. Dig. §§ 981-983; Dec. Dig. § 335.*] [Ed. Note -For other cases, see Vendor and Appeal from Court of Common Pleas, Fayette County. Action by Leslie A. Howard against Anna M. Stillwagon, and others. From a judgment for defendants non obstante veredicto, plaintiff appeals. Reversed, with direction that judgment be entered on the verdict. Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, and MOSCHZISKER, JJ. H. S. Dumbauld and Robinson & McKean, for appellant. W. J. Sturgis and S. J. Morrow, for appellees. BROWN, J. There is no fact in dispute in this case. By an agreement in writing, dated April 18, 1904, the appellees agreed to sell to the appellant, and he agreed to buy from them, a lot of ground in the borough of Connellsville for $5,800. The property was incumbered by a mortgage for $2,100, which he agreed to assume, and the balance of the purchase money was to be paid as follows: $600 cash upon the signing of the agreement, $400 within two weeks, $1,350 in three months, and $1,350 in six months; the deferred payments bearing interest. The contract provided that, "on failure of the second party to pay the purchase money, or any part thereof or the interest and taxes as above mentioned, then this agreement to be void, as it regards the first parties, at their option." By the terms of the agreement, the appellees were authorized to enter judgment against the appellant for the purchase money, and a further provision authorized any attorney to confess judgment in ejectment against him upon his failure to pay it. The last installment was due on October 18, 1904, *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes but up to that time the appellant had paid | against the appellant in the amicable action only $1,777 and some interest. Subsequently of ejectment was a complete adjudication he paid the appellees $664.42 and interest. of the rights of the parties to the contract, So far as can be gathered from the records, and that he cannot therefore recover back these payments were accepted by the appel- what he paid on account of the purchase lees without complaint or protest, and the money, counsel for appellees overlook the appellant was justified in believing that they plain terms of the agreement signed by would not insist upon strict compliance with them. They had the right, as already obthe terms of the agreement, so far as the served, to enforce payment of the balance times of payment were concerned. Up to of the purchase money; but they expressly June 12, 1906, he had paid them $3,005.36, reserved to themselves another right-to which included $553.94 interest. treat the agreement as void-with no right, however, if they should so treat it, to keep what the appellant had paid them on it. The rights of each of the parties must be found in the agreement, and, in the absence of anything therein authorizing the appellees to treat as forfeited to them the purchase money which the apppellant paid them, and which they accepted from him before they undertook to rescind after they had the right to do so, their claim to retain it is no more favored by the law than in equity. Even if they had resold the property at a loss, they could not have retained out of the moneys paid them by the appellant more than sufficient to reimburse them for the loss sustained. Up The appellees had two remedies under the agreement for the appellant's default in paying the purchase money. In affirmance of their contract with him, they could have entered judgment against him, and enforced payment out of any property which he might have owned, including that which was the subject of the agreement. This they did not do but, in accordance with the option which they had reserved to themselves in the agreement, they treated it as void, and, on November 13, 1906, without giving the appellant notice that no further indulgence in making payment would be granted, and without tendering him a deed and demanding the balance of the purchase money, they entered a judgment in an amicable action of ejectment to recover possession of the property. on this judgment, a writ of habere facias possessionem was duly executed, and the appellees were put in possession of the property. The stipulation in the agreement that, on the default of the appellant in paying the purchase money, or any part thereof, the appellees might, at their option, treat it as void gave them the authority to rescind, and their action in summarily repossessing themselves of the property was a rescission of the contract between them. Campbell v. Hickok, 140 Pa. 290, 21 Atl. 362; Scott v. Hough, 151 Pa. 630, 25 Atl. 123; Seanor v. McLaughlin, 165 Pa. 150, 30 Atl. 717, 32 L. R. A. 467. If the appellees elected to treat the agreement as void, as they did, nothing is to be found in it, and nothing was developed at the trial, to justify their keeping the appellant's money. The moment they exercised their option to treat the agreement as void, and to rescind their contract with the appellant, he was, in the absence of anything shown to the contrary, entitled to get back what he had paid. When they rescinded the agreement, they could no longer derive any benefit, directly or indirectly, from it (Sanders v. Brock, 230 Pa. 609, 79 Atl. 772); and they were bound to place the plaintiff in statu quo by returning the purchase money which they had received from him. After directing a verdict for the plaintiff, the court entered judgment for the defendants under the act of April 22, 1905 (P. L. 286), and cited Jones v. Scott, 209 Pa. 177, 58 Atl. 281, as authority for doing so. A very different question was presented in that case, and it has no bearing upon the question which was before the court below, and is now before us on this appeal. All that was there decided was that the court below had not erred in opening a judgment entered against Scott in an amicable action of ejectment, and restoring to him possession of the premises upon his paying the balance of the purchase money, counsel fees, and costs. In the opinion of Mr. Justice Dean, the reasons are stated which justified the equitable interference by the court. This appellant asked for no relief from the judgment and execution against him in the amicable action of ejectment. He acquiesced in what the appellees did under their right to treat the agreement as void; and he was bound to do so, for such was the agreement between them. All that the appellant now asks is that, as the appellees elected to treat as void their agreement to sell him the lot of ground, they return to him what he paid them on account of the purchase money, and to this he is entitled. The assignments of error are sustained, the judgment is reversed, and the record remitted, with direction that judgment be entered for plaintiff In contending that the entry of judgment on the verdict. Pa.) (232 Pa. 612) GOULD V. RANDAL GOULD et al. v. RANDAL. (Supreme Court of Pennsylvania. July 6, 1911.) ($ 747*)-CONCLUSIVENESS1. JUDGMENT JUDGMENT CONCLUSIVE. Where in ejectment plaintiff claims title through a sheriff's sale on a judgment, and the defendant claims that the plaintiff's title is defective, in that the bond on which the judgment was entered was void because the mortgage accompanying it was invalid, that the venditioni exponas on which the sale was made was void because of its issuance after the death of the defendant without notice to his legal representative, and that the trial court had no jurisdiction of the action of ejectment because of Act April 20, 1905 (P. L. 239), defining the rights and liabilities of purchasers of realty at judicial sales and of persons then in possession thereof, and a verdict is rendered for plaintiff, defendant is not thereafter entitled to have the judgment on the bond opened by a court of equity and proceedings thereon declared void and the sheriff's deed canceled and the judgment on the bond stricken off, nor to require the administrator of the defendant to make defense to the judgment. [Ed. Note. For other cases, see Judgment, Dec. Dig. § 747.*] 2. JUDGMENT ($ 70*)-CONCLUSIVENESS. In ejectment, where plaintiff claims title under a sheriff's sale on a judgment on a bond, the trial court properly refused to permit an attack on the judgment in the absence of any allegations that it was collusive or intended to defraud complainant, since a third party has no right to attack a judgment entered on a warrant of attorney either directly or collaterally in the absence of such allegations. [Ed. Note. For other cases, see Judgment, Dec. Dig. § 70.*] 3. JUDGMENT (§ 70*)-CONFESSION-SETTING ASIDE. A judgment entered on a warrant of attorney has all the qualities and effect of a judgment entered on a verdict after a trial, until it has been set aside or reversed in an appropriate proceeding instituted for the purpose. [Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 104-108; Dec. Dig. § 70.*] 4. JUDGMENT (8 456*)-EQUITABLE RELIEF LACHES. A judgment will not be opened at the instance of the administrator nine years after its rendition, where the judgment has been collected by execution and title to real estate would be invalidated by the opening or setting aside of the judgment. [Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 863-866; Dec. Dig. § 456.*] Appeal from Court of Common Pleas, Philadelphia County. Bill in equity by Isador M. Gould and another against Harry L. Randal. From a decree dismissing the bill, plaintiffs appeal. Affirmed. Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, and MOSCHZISKER, JJ. V. Gilpin Robinson and B. I. De Young, for appellants. Stanley Folz and Leon H. Folz, for appellee. MESTREZAT, J. [1] We must affirm this decree or reverse our judgment in Randal v. 809 Gould, 225 Pa. 42, 73 Atl. 986. That was an action of ejectment for the real estate involved in this controversy, and was brought in the court of common pleas No. 2 of Philadelphia county by the defendant in this proceeding against Gould, the plaintiff, who filed this bill. The plaintiff in the ejectment suit claimed title through a sheriff's sale made on the judgment in which Mary C. Bell, wife of Alonzo Bell, was the defendant. The defendant claimed title through Mary C. Bell by a deed from Alfred F. Fisher, who was the grantee of Mary C. Bell and her husband. The judgment on which the sheriff's sale was made was entered about two years after the conveyance of the property by the Bells to Fisher; but on the trial of the ejectment the plaintiff. alleged and the jury found that the sale of the Bells to Fisher was made to cheat and defraud Randal, and to hinder, delay, and defraud him in the collection of the debt due him from Mary C. Bell, and that Gould took title to the property with notice and knowledge of the fraudulent character of the conveyance. Gould contended that Randal's title was defective, and set up as a defense that the bond of Mary C. Bell on which the judgment was entered in common pleas No. 5 of Philadelphia county was void because the mortgage accompanying it was a nullity, that the vend. ex. on which the sale was made by the plaintiff was void because it was issued after the death of Mary C. Bell without notice to her legal representative, and that the trial court had no jurisdiction because of the remedy provided by the Act of April 20, 1905 (P. L. 239). The judgment in that case in favor of the plaintiff, affirmed by this court, judicially determined that these defenses were insufficient to defeat Randal's title to the premises in controversy. This judgment concludes Gould not only as to matters relied on by him to defeat the action, but also as to all other matters of which he could have availed himself as a defense to the ejectment. Schwan v. Kelly, 173 Pa. 65, 33 Atl. 1107; Dutton's Est., 208 Pa. 350, 57 Atl. 719. The present proceeding is a bill filed by Gould against Randal while the ejectment was pending, and prays that the judgment. entered in common pleas No. 5 on the bond given by Mary C. Bell to Randal be opened and that all proceedings thereon be declared void; that the sheriff's sale made thereon be set aside and the sheriff's deed be canceled; be authorized to make defense to the judg that the judgment be stricken off; that Gould ment; and that Mary C. Bell's administrator be required to make defense to the judgment.. The reasons and grounds set forth in the bill in support of the relief prayed for are substantially the same as those set up by Gould as a defense in the ejectment suit. The matters sought to be litigated in this proceeding have been determined in an action between *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes the same parties in a court of competent jurisdiction and are therefore res adjudicata. The validity of Randal's title to the premises in question was at issue in the ejectment suit. His title depended upon the validity of the bond of Mary C. Bell and the judgment entered thereon, and the subsequent sheriff's sale by which the title was vested in Randal. These matters were adjudicated in that action, and the judgment is conclusive as against Gould. The present bill raises the same issues and for the same purpose, to wit, to defeat Randal's title to the real estate in controversy. Gould had his day in court in the ejectment suit and his rights adjudicated as to every question raised in this bill, and therefore the learned court committed no error in dismissing the bill on the ground that "the present proceeding is an effort to retry in a court of equity a cause already determined in a court of law." [2] The appellant lays stress on the fact that on the trial of the ejectment case in common pleas No. 2 the court would not permit the judgment entered in common pleas No. 5 by Randal against Mrs. Bell on which the real estate was sold to be attacked. This was clearly right. It is not alleged that the judgment was collusive or was entered to defraud Gould, and hence he, as a third party, has no right to attack it either directly or collaterally. Drexel's App., 6 Pa. 272. If, however, Gould had any standing to attack Randal's judgment against Mrs. Bell on any ground whatever, except for fraud or collusion which is not alleged, he could not do so in the ejectment suit. [3] The judgment was entered by virtue of a warrant of attorney, and until set aside or reversed in an appropriate proceeding instituted for the purpose it had all the qualities and effect of a judgment entered on a verdict after a trial. Braddee v. Brownfield, 4 Watts, 474; Montague v. McDowell, 99 Pa. 265. It is wholly immaterial that the judgment was entered in common pleas No. 5 and not in common pleas No. 2, where the eject ment suit was being tried. It was as conclusive on Gould in the latter court as in the court in which it was entered-it was not the subject of collateral attack in either court. Randal's judgment against Mrs. Bell was entered on May 8, 1902, and laches now prevent her administrator from attacking its validity. After the lapse of so many years and the collection of the judgment by execution process, it is too late to invoke the equitable powers of the court to open or strike it off and thereby invalidate the title to real estate depending on its validity. The bill in equity to open the judgment and set aside the proceedings thereon, subsequently prosecuted to a final decree, was pending at the time the same relief on the same facts was asked by a petition presented to the law side of the court. The plaintiff could not maintain both proceedings at the same time, and therefore the court did not err in refusing the petition. Freeman v. Lafferty, 207 Pa. 32, 56 Atl. 230; Mellerio v. Freeman, 211 Pa. 202, 60 Atl. 735. The order refusing the petition to open the judgment is affirmed, as is also the decree dismissing the bill in equity. (232 Pa. 629) RIFFERT et al. v. LEHIGH VALLEY (Supreme Court of Pennsylvania. July 6, 1911.) 1. EXECUTORS AND ADMINISTRATORS (§ 454*)→ EXECUTION-SALE-WAIVER OF IRREGULARI TIES. Where, after a writ of venditioni exponas has been issued and stayed, an administrator d. b. n. c. t. a. is substituted as defendant, and he permits a pluries writ to be issued and the property to be sold by the sheriff and a sheriff's deed to be executed and acknowledged, he waives such irregularities affecting innocent purchasers at the sale as that the executor of defendant fieri facias was issued, though he had previously was the substituted defendant at the time the renounced as executor. [Ed. Note. For other cases, see Executors and Administrators, Dec. Dig. § 454.*] 2. EXECUTION (§ 247*)-SALE-SETTING ASIDE -EVIDENCE. of ejectment 60 years after the sale because the An attack on a sheriff's sale, in an action purchaser had been an assignee for creditors of the defendant in execution, will not be sustained. where there is no evidence that the purchaser had ever accepted under the deed of assignment or knew that he was named therein. [Ed. Note. For other cases, see Execution, Dec. Dig. § 247.*] EJECTMENT (§ 95*)- EVIDENCE - WRIT OF EXECUTION. Where defendants in ejectment rely on a sheriff's deed executed and recorded 60 years before the commencement of the action, the fact that one of the writs of execution cannot be found does not defeat their title, where the record shows that the writ was issued. [4] The judgment of Randal against Bell being valid and subsisting and ripe for exe-3. cution, the plaintiff had the right to enforce payment by execution process. This he did, and it resulted in the sale by the sheriff of the defendant's real estate which the plaintiff in the writ purchased and for which he brought the ejectment. To sustain his title he was compelled to rely on the regularity and legality of the proceedings on his judgment, which therefore became an issue in that action and was finally and conclusively adjudicated by the judgment of this court entered in that case. [Ed. Note.-For other cases, see Ejectment, Dec. Dig. § 95.*] 4. EXECUTION ($ 315*)-SALE-CONVEYANCERECORD. That no minute of the acknowledgment of a sheriff's deed, recorded in the sheriff's deed book in 1840, appears in the common pleas Pa.) RIFFERT v. LEHIGH VALLEY COAL CO. 811 minutes of that year, does not affect the title | torney for Keim, executor, and is dated thereunder. April 16, 1838; the agreement for substitution antedating the renunciation by two days. The judgment then stood William Silvis v. Keim, Executor of Brobst. [Ed. Note. For other cases, see Execution, Dec. Dig. § 315.*] Appeal from Court of Common Pleas, Northumberland County. Ejectment by John R. Riffert and others against the Lehigh Valley Coal Company. From a judgment for defendant, plaintiffs appeal. Affirmed. Ejectment for land in Mt. Carmel township. At the trial the court charged as follows: "The plaintiffs in this case, numbering nearly a hundred, are the heirs of Valentine Brobst, deceased. Valentine Brobst lived in the early part of the last century, and up to his death, which occurred on March 18, 1837, in the city of Reading, Berks county, this state, and owned large tracts of land in several counties, among others the tract of land for which this action of ejectment has been brought. He owned that tract of land from 1816 up to the time of his death. "On October 26, 1835, one William Silvis entered in this court a judgment, by confession, against Valentine Brobst, which judgment was for $4,500, real debt. No steps were taken towards the collection of this judgment by execution prior to the death of Valentine Brobst. "February 15, 1837, three days more than a month before his death, Valentine Brobst made an assignment for the benefit of creditors to William Silvis and another. Although proceedings were subsequently had under the deed of assignment, as shown by the records of the Berks county courts, this assignment made in Berks county and there recorded (Berks county having jurisdiction of their accounts), etc., yet it nowhere appears that William Silvis ever accepted the trust under this assignment, or that he ever knew that he was one of the assignees named therein. William Silvis, the plaintiff in the judgment, about which I have just spoken, lived in Northumberland county, many miles distant from Reading and in those days a long journey. "On May 10, 1838, a writ of fieri facias was issued. That writ was stayed. On May 17, 1838, an alias writ of fieri facias was issued, and under that writ condemnation and inquisition proceedings were had and the land condemned. On September 10, 1838, a writ of venditioni exponas was issued, which was stayed by plaintiff's attorney. On September 25, 1839, a pluries venditioni exponas issued; an alias in the meantime having been issued and stayed. Up to this time the judgment stood and all the proceedings thereon, Silvis v. Keim, Executor. On November 30, 1839, Samuel S. Jackson, administrator, etc., was, by agreement, substituted. January 29, 1840, the third pluries venditioni exponas was issued, the second having, in the meantime been stayed, and under this the lands levied upon were sold (among which was the land in suit in this case) to William Silvis for the sum of $9,800. The sheriff's deed was duly acknowledged. This sheriff's title to Silvis became and is now vested in the defendant in this case. [1] "It is contended by the plaintiffs that this sheriff's sale was void, first, because there was, as they allege, no personal representative of the dead defendant on record. He had not been brought into court and was not upon the record at the time the fieri facias issued and at the time of the inquisition and condemnation of the land. The record itself is regular. We only know from proof, introduced here upon trial dehors the record, that Keim had never accepted the trust imposed upon him by the will of Valentine Brobst. He was named in the will as one of the executors of Valentine Brobst. He was substituted by an agreement of an attorney acting for him; but there is nothing in the case to show that there is any irregularity in this record which was brought to the knowledge of Silvis, the purchaser at the sheriff's sale, and we believe that the irregularity cannot affect his title. "Valentine Brobst died testate, and one of the executors of his will was a man by the "But subsequent to the condemnation proname of Keim. Keim never took out letters ceedings before the sale, namely, before the testamentary, as appears from the records second and third pluries writs of venditioni of the orphans' court of Berks county; but, exponas issued, Jackson, the duly appointed by a paper dated April 18, 1838, renounced administrator with the will annexed, was the trust. When this paper was filed does substituted and came upon the record as not appear, but one Samuel S. Jackson was defendant by agreement. He was a party granted letters de bonis non cum testamento to the record, etc., at the time of the sheriff's annexo on May 23, 1838. Notwithstanding sale and the acknowledgment of the deed by Keim had never taken out letters testamen- the sheriff. tary, on April 23, 1838, he was substituted as executor in the case of William Silvis v. Valentine Brobst, the judgment I spoke of a few moments ago. This substitution was by agreement of one Dunn, acting as at*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r indexes "We are of the opinion that under the authorities cited, especially Diese v. Fackler, 58 Pa. 109, and Spragg v. Shriver, 25 Pa. 282, 64 Am. Dec. 698, he will be held to have waived any irregularities that would affect |