Opinion by
Mb. Justice Mitchell,It is undisputed that the original conveyance by Shaw to appellee was to secure the latter for his advances and liabilities on Shaw’s account, to enable him to sell the property, repay himself, and turn over any balance remaining to Shaw. This purpose was set out in writing, but the paper was not under seal and was not acknowledged or recorded. As the conveyance to appellee was absolute on its face, the case prima facie came under the act of 1881 as an ineffectual defeasance.
But the bill, as was pointed out by our Brother Dean, when the case was here before (193 Pa. 646), is not founded on the agreement as a defeasance, affecting the character of the original transaction, but on fraud of the appellee, in procuring the deed as security to himself for liabilities already discharged, and the subsequent misapplication of the property in his hands, or the proceeds of that sold by him. The averments of fraud being technically admitted by the demurrer, all we said was “ that plaintiff is entitled to a hearing.”
The hearing has now been had and the court below has found explicitly that there was no fraud on the part of the appellee, and that “ taking into consideration the full amount of the obligations paid as surety for Shaw, together with the judgment and mortgage paid off on the property conveyed to him, and rating said property at its market value in the years 1891 and 1892, McMinn has paid a full and fair price for the same.”
This is equivalent to finding that upon an account between Shaw and the defendant, Shaw would not be entitled to recover. McGovern, under whose judgment plaintiff claims as sheriff’s vendee, was a subsequent creditor, and plaintiff’s rights, therefore, are no higher than Shaw’s.
Decree affirmed with costs.