Opinión,
Mr. Justice Clabk :For the purposes of this case we must assume that the facts embraced in the defendants’ offers are true, or, rather, that the offers would, have been justified by the proofs. We must assume, therefore, that the deed of April 5, 1871, from Charles H. Miller and Elvira, his wife, through Bechtel, as a trustee, to the said Elvira L. Miller, although upon a merely nominal consideration, was a transaction in good faith, founded upon a (full consideration paid at or prior to the execution thereof; that the consideration advanced was taken out of her separate estate by Elvira L. Miller and was used in relief of her husband, and that this was an adequate and full price for the land ; that at the time of this conveyance Charles H. Miller and his wife were under the belief that Henry H. Miller, who was the executor of Henry Miller, deceased, had funds in his hands belonging to Charles, sufficient to pay the Klopp judgment in relief of his obligation as surety, according to their agreement to that effect; and that there was no purpose in the mind of Charles or of his wife to hinder, delay, or defraud Henry H. Miller to whom the judgment had been assigned, or any other creditor of Charles H. Miller. Assuming these facts, and that the defendants were not in any way precluded from asserting them, the plaintiff had no case, for the legal title to the land in dispute was in Elvira, before the entry of the Klopp judgment through which the plaintiff claims title.
The plaintiff’s contention, however, is that the defendant, Elvira L. Miller, through whom Spayd claims, estopped herself from asserting these facts in support of her title; that in the seventh clause of the bill in equity, filed December 16,1876, she set forth her title under the deed of April 5, 1871, as upon a voluntary conveyance; and that she cannot now assert, to his prejudice, that the deed was in fact founded in an adequate consideration fully paid.
■ Henry H. Miller and Charles H. Miller were the sons of Henry Miller, deceased, and were the devisees jointly of the real and personal estate of their father. Charles alleges that the belief and understanding was, when Henry became surety on *373the Klopp bond, that there would be enough money in Henry’s hands belonging to him, to pay the Klopp debt. Judgment was afterwards entered, however, by Klopp, and Henry paid it off, obtaining a decree of subrogation to the rights of Klopp. Execution was thereupon issued, with a view to levying upon Charles’s interest in the land, when Charles and his wife Elvira joined in a bill against Henry for an account and a stay of proceedings on the judgment in the meantime.* It was in the recitals of this bill that the alleged estoppel is supposed to arise. In the seventh clause of the bill the complainant says:
“ 7. That in the spring of 1871 Charles H. Miller was found to be indebted to different parties to an amount exceeding $4,000, of which over $2,000 was owing to his wife Elvira, for debts paid and money advanced for him, and $2,000 or thereabouts, to other persons; for the payment of this latter sum $2,000 was borrowed from Michael IJaak, and applied to the indebtedness of Charles H. Miller, not including the Klopp bond, which was expected to be paid by Henry H. Miller out of Cliarles’s share of the estate; that to secure the amount loaned by Michael Haak a judgment bond was executed in his favor for said sum of $2,000, duly entered to No. 363 March Term 1876, in the Court of Common Pleas for Berks county, on the sixth day of April, 1871; that subsequent to the entry of said bond, in order to prevent the said Charles H. Miller from wasting his estate by contracting additional debts, and to secure the same for the benefit of himself and family, it was arranged that his entire interest in his father’s estate should be transferred, to his wife Elvira; and in consideration of the premises the said Charles H. Miller conveyed the same, through a trustee, to bis. wife Elvira, as appears by deeds duly recorded in the recorder’s office for Berks county.”
The title to the land was not in any way brought in issue by this bill. It was a bill for an account, merely. The accounting resulted in a balance of $1,391.20 against Charles, exclusive of the Klopp judgment. It appeared during the investigation that in the payment of the legacies charged on the land not only was the personal estate wholly exhausted, but that Henry had paid out of his own pocket a considerable sum; and, as by *374the will of their father both Henry and Charles, as joint devisees, were bound for payment thereof, Henry was subrogated to the rights of the legatees, as against Charles’s interest in the land held by his wife, for Charles’s share of the deficiency. What was said in the opinion filed, with reference to the title, was wholly unnecessary in arriving at the result reached by the decree. It was a matter of no consequence, whatever, whether Elvira L. Miller held the land upon a merely voluntary conveyance, or upon a conveyance for full value paid, for the lien of the legacies antedated the deed, and entitled Henry to the balance upon the account as against any conveyance Charles might have made. The title of the land was not brought in issue by the bill or by the pleadings : what was said on that subject was doubtless upon the assumption that the conveyance, which was made upon a merely nominal consideration, was voluntary; it was intended merely to illustrate the want of equity in Elvira, as a purchaser of the land, to complain that she was held for the amount of the decree. There was no adjudication upon the title of the land: the thing adjudicated was the account, and in the adjudication of the account the title to the land was in no way involved. What reference was made to the title was merely incidental: it was, as we have said, unimportant for the purposes of that case whether the deed was voluntary or for value', for, in any event, the lands owned by Charles and which he conveyed to his wife, were bound by the prior lien of the legacy, to which Henry had been subrogated.
What ground is there, then, for an estoppel ? If it be true that Elvira L. Miller was a bona-fide purchaser for value of the premises in dispute, what statement in the seventh section of the bill will preclude her from showing the fact ? She does not there state that she held the land by voluntary conveyance; she states, in substance, what she now offers to prove, that her husband was indebted to her in the sum of $2,000 or $2,500, money advanced from her separate estate in the payment of his debts; that $2,000 more was afterwards borrowed or furnished for the ■same purpose, for which latter sum a judgment was entered; and that subsequently, in order to prevent the said Charles H. Miller from wasting his estate by contracting additional debts, and to secure the same for the benefit of himself and family, it was arranged that his entire interest in his father’s estate should *375be transferred to bis wife, Elvira, and in consideration of the premises the conveyance was made. Whether it was the design and intent of the parties to secure the land for the benefit of himself and family indirectly, through the bona-fide purchase of the land by the wife or otherwise, is a matter to be determined upon the proofs.
We think the offers contained in the first, second, and third assignments of error should have been received: whether the transaction alleged therein was in good faith and upon a full consideration or not was for the jury; we can see no ground for an estoppel. The offers contained in the fourth and fifth assignments were not admissible for the purpose stated, and the sixth assignment is without merit. The seventh was ruled upon the testimony received, and it is unnecessary to consider it.
The judgment is reversed, and a venire facias de novo awarded.
See Miller's App., 119 Pa. 620.