Hartman v. Diller & Groff , 1869 Pa. LEXIS 209 ( 1869 )

The opinion of the court was delivered,

by Sharswood, J.

The 1st assignment of error is that the court below erred in permitting the declarations of Bartel made after the sale to Hartman and not in Hartman’s presence to be given in evidence. As a general principle it is undoubtedly well established that the declarations of a grantor made after the execution of the grant cannot be made use of for the purpose of impeaching it. But the rule has been so far modified that when the bona fides of the transfer is attacked by creditors alleging' that it was intended to hinder, delay and defraud them, and therefore void under the statute of 13 Eliz. c. 5, and some evidence has been adduced tending to show a common purpose or design of this character by the parties, then such declarations are admissible. For wherever evidence is given tending to prove a combination or conspiracy to do an unlawful act, it lets in the declarations of all the parties against each other. In Reitenbach v. Reitenbach, 1 Rawle 362, where the question was as to the validity of a bond, and a conversation with the obligor in the presence of the obligee had been proved going to show a fraud upon creditors, other declarations subsequently made by the obligor in the absence of the obligee were held to have been improperly excluded.

In Wilbur v. Strickland, 1 Rawle 458, and McDowell v. Rissell, 1 Wright 164, a principal fact relied on as laying sufficient ground for admitting such evidence seems to have been that the vendor occupied and used the property after the transfer as he had done before; for such continuance in possession is beyond all question a badge of fraud, even if under the circumstances it be not a fraud per se, which most generally it is. In the case last cited it was said by Woodward, J.: “To make such declarations competent, there must be some evidence of a common purpose or design; but a very slight degree of concert or collusion is sufficient.” That there was such evidence in this case is very apparent. Bartel, the vendor, after the alleged sale to Hartman, continued in the establishment working just as he had done before — his name was not entered on the time book as one of the workmen employed — he had access at all times to the books, and he used his influence and persuasion with the hands to induce them to agree to a reduction of wages. Hartman was shown on one occasion to have referred a person to Bartel to procure money for the purchase of material, and Bartel furnished the money. These were circumstances quite as strong as those adjudged to be sufficient in the cases, which have been cited. What weight was to be attached to the declarations when admitted was of course for the jury. If on the whole evidence they, believed the transaction to have been honest and bond, fide on the part of Hartman, they would not of course give any weight to declarations by Bartel, the effect of which would be to apply property, which he had bought and paid for, to satisfy the debt of a dishonest vendor,

The remaining assignments of error are to the charge of the court in answer to the points presented by the counsel of the defendants. Those presented by the plaintiff were all' affirmed. An attentive examination of the answers excepted to has not satisfied us that there is any error of which the plaintiff has any right to complain. They submitted to the jury the evidence as to the want of consideration for the transfer, the retention of possession by the vendor concurrently with the vendee, and the other facts from which they were to decide whether the transfer was made to hinder, delay and defraud the creditors of Bartel. If the bill of sale was wholly without any consideration at the time it was made, no money then paid or agreed to be paid, and no precedent indebtedness, a subsequent payment by the vendee of a demand against the property by a third person claiming to be a partner of the vendor would not validate the transaction. The court below stated the law accurately when they instructed the jury in answer to the defendants’ 2d point that “ on the exhibition of the agreement, and it being shown that no money or consideration was paid or given at the time of its execution, it was necessary for the plaintiff to satisfy the jury that there was a valuable consideration for the purchase of the property agreed to be sold to him, to the amount set forth in the agreement, either at the time it was made or before, and his failure to do so would be a circumstance from which the jury might infer that the transaction was fraudulent.” The exception to the answer to the 3d point of the defendants is a mere verbal hyper criticism. In referring to the matters stated as facts, it is plain that the court did not mean to usurp the province of the jury in deciding upon the'sufficiency of the evidence which had been adduced to prove them. It was in affirmance of the point, that if the jury believed from the testimony that these were facts, they were evidence of fraud and collusion. In like manner we must construe the answer to the 4th point by reference to the point itself. It negatived so much of that point as asked for an instruction that if the arrangement was for the purpose of securing Hartman for money advanced by him to Bartel, the verdict must be for the defendants, by saying that “ if the sale were bond, fide for the purpose of securing Hartman for money which had been actually advanced by Bartel, and no other purpose, there would in such a case be no fraud.” The court certainly could not have been understood as instructing the jury that this was the only consideration which would render the sale valid. We must look at the whole charge and answers together. We are not called upon to say whether they were in all respects a true statement of the law. It is enough that they did the plaintiff in error no injury. He cannot complain if the whole question of the bona fides of the transaction was fairly submitted to the determination of the jury upon the evidence which had been given in the cause.

Judgment affirmed.