¶1The opinion of the court was delivered by
¶2Mary Jane Payne had the legal title to this land, subject to some judgments against a former owner. Then a jft. fa. was issued on one of these judgments, and the former owner waived inquisition and condemnation, and allowed a sale on that writ. Of course, this could not affect the then owner’s title; she alone could waive her right to have inquisition. Was there anything to cure this irregularity ? It is supposed to be cured by a former condemnation in another suit; but that was a proceeding against William Payne. The levy and condemnation were of his interest, not Mary’s; and that could not possibly cure the defect in the proceeding against Mary’s title.
¶3The sale went on the hypothesis that Mary’s title was a fraud on the creditors of William. On the distribution, an issue was ordered to try this question, and Mary was made a party to it. But she was claiming nothing out of the sale, and refused to be a party. This was right, for she could not claim the proceeds without some kind of admission that her title was sold. And she could not be compelled to try her title in such a proceeding. That was to be tried by an action of ejectment. There was nothing in the offers of evidence that tended to cure the defects in the title of the defendant below, or divest the title of the plaintiff, and the verdict was rightly rendered for the plaintiff. No evidence was offered to show any fraud in Mary’s title.
¶4Judgment affirmed.