Garber v. Doersom , 117 Pa. 162 ( 1887 )

Opinion,

Me. Chief Justice Goedon :

A brief statement of the facts of this case will, we apprehend, very clearly demonstrate that the plaintiff in error has no good reason to complain of the rulings and judgment in the court below. The plaintiffs below had two several judgments against Jonas B. Garber; on these judgments executions were issued, and levies made on the property in controversy as the property of the said Jonas B. Garber, November 11, 1884.

Preceding these executions, October 23, 1884, Andrew Garber issued an attachment under the act of 1869, against this same defendant, who is his son, and also a second writ of the same land on the 8th of November following. Neither of these attachments were successful, for the reason that the sheriff failed to make a lawful levy on the property intended to be attached.

Then, after the plaintiffs’ levy, November 20, 1884, the defendant, having discovered the mistake by which his writs were rendered nugatory, made application to the court below to restrain the sheriff from selling the property under the plaintiffs’ executions. On this application of Garber, accompanied by his affidavit, the court granted a rule to show cause, which was, after hearing, January 17,1885, finally discharged.

The petition and affidavit set forth, inter alia, as follows: “ That since said writs of attachment came into the hands of the said sheriff and he attached all the goods and chattels of the said defendant, but failed to make an inventory which contained all the goods, chattels, etc., of said defendant, by reason of the said defendant refusing to give said sheriff any items or names of articles of personal property belonging to him, though requested so to do by the said sheriff, the said defendant confessed two judgments, one in favor 'of Philip Doersom, and the other in favor of Philip Rudy. Executions -were duly issued, Nov. 11,1884, on said two judgments against J onas B. Garber, and the said sheriff of said county, by virtue of said executions or fi. fas., on November 11, 1884, levied on the following of the defendant’s personal property, viz.: 3 iron hog-troughs, 1 fat hog, about 30 tons of hay, about 18 tons of straw, a lot of lumber, planks, boards, scantlings and bill stuff, 9 bundles of No. 2 shingles, 2 sets of tobacco ladders, one half interest in 14 acres of corn and fodder, also rope and 3 pulleys, one chopping machine and scalding trough; and advertised by hand-bills to sell said last mentioned personal property levied on under said fi. fas., at public sale, on Wednesday, November 29, 1884. Your petitioner further represents that all of said property levied on under said fi. fas. was defendant’s personal property, and in said county at the time of issuing said writs of attachment.”

It thus appears that this attempted interference with the plaintiffs’ writs was founded on the fact that the goods seized belonged exclusively to Jonas B. Garber, and with what conscience the defendant now sets up the contrary in order to defeat the execution of these same writs, ought to be to an honest man inconceivable. At all events, justice will permit nothing of the kind; one cannot be permitted to play fast and loose with the efforts of creditors to secure their just dues: Strouse’s Exr. v. Becker, 38 Pa. 190; Huey’s App., 29 Pa. 219. Therefore, for all purposes of this case, the goods in question belonged, until sold on the plaintiffs’ writs, to Jonas B. Garber, and; as against the sheriff’s vendees, the defendant unlawfully detained them; hence the action of trover was well brought to recover their value. It is true, were we to-assume the defendant’s hypothesis, that Garber and his son were joint owners of the goods, the former being in the lawful possession thereof, trespass or trover would not lie for the son’s share unless it were proved that there had been an actual destruction of them by Garber : Trout v. Kennedy, 47 Pa. 387. But as the hypothesis assumed is not admissible, neither does the doctrine founded on it apply. As it was not of the least-consequence by what arrangement the plaintiffs, as between themselves, claimed to hold the property in suit, so the court properly 'disallowed the questions covered by the first and second assignments. • It was enough for all purposes of the case that the goods were sold on their writs, and bid in by one of them for both.

The declarations of Jonas B. Garber were not admissible to establish a parol lease between, himself and his father, or to prove its contents. Such declarations, made when he was in possession of the farm, might have been introduced to prove how he held, whether us tenant or proprietor: Sheaffer v. Eakman, 56 Pa. 144; but as the fact of his tenancy was not in dispute, the proposed evidence was admissible for no pui- . pose. That the records in the case of Doersom v. Garber were properly admitted is not doubtful, and if there were papers among them which ought not to have gone to the jury, they ought to have them specially objected to.

The judgment is affirmed.