Redfield & Rice Manufacturing Co. v. Dysart , 1869 Pa. LEXIS 213 ( 1869 )

The opinion of the court was delivered,

by Williams, J.

This was an issue, under the Sheriff’s Inter-

pleader Act, to determine whether or not the goods levied on by the sheriff of Lancaster county under an execution at the suit of the Redfield & Bice Manufacturing Company against James P. Dysart, on the 19th of January 1867, belonged to Robert M. Dysart, the claimant, at the time they were seized by the sheriff. The only question presented for consideration by the assignments of error is, was the evidence given by the claimant sufficient to justify the court in submitting the question of his ownership of the goods to the jury for their determination ? To show title in himself, he gave in evidence a bill or deed of sale executed by James P. Dysart, on the 19th of November 1867, in the body of which'the payment of the consideration is recited, and its receipt acknowledged, and followed it by evidence of his possession of the goods from the date of the sale until their seizure by the sheriff. This was the only evidence of the contract of sale and of the consideration on which it was founded. If under the circumstances it was sufficient to justify the jury in finding that the sale was made in good faith and for a valuable consideration, the court properly submitted the question to the jury; but if it was not, the court erred in not instructing the jury, as requested by the defendant below, that as the plaintiff has not shown that he paid any moneys to James P. Dysart at the time the bill of sale was executed, or at any other time, the transaction is to be regarded as fraudulent in law and void as against the vendor’s creditors.

The contest was between the execution-creditor of the vendor and his vendee under a sale which was alleged to have been made before the issuing of the execution, but which was charged to have been collusively and fraudulently made for the purpose of hindering and delaying the creditor. Under the issue the burthen of showing that the sale was honestly made, and that it was founded on a valuable consideration, was clearly on the plaintiff. It was incumbent on him, as ruled in Streeper v. Eckart, 2 Whart. 302, to remove all doubt as to the fairness of the transaction, even if possession accompanied the transfer. Was then the recital of the payment of the consideration, and the acknowledgment of its receipt in the bill of sale, sufficient to establish the fairness of the sale, and to show that was made with an honest intent and for a valuable consideration paid by the vendee ? If the price was not paid as recited and acknowledged in the bill or deed of sale, then the transaction was a mere sham and contrivance to cover up and conceal the vendor’s property from his creditors. Proof of the payment of the consideration was, therefore, an essential requisite in order to show the honesty and fairness of the transaction. And the question recurs, was the mere recital of the payment of the consideration, and the acknowledgment of its receipt by the vendor in the deed of sale, sufficient proof of the fact of payment under the circumstances attending the sale? The rule is well settled that where there is proof, however slight, of fraud, the burthen of proving payment is thrown on the vendee, and other evidence than the receipt to the deed is necessary to establish the payment of the purchase-money: Rogers v. Hall, 4 Watts 359; Bellas v. McCarty, 10 Id. 29; Lewis v. Bradford, Id. 82; Bolton v. Johns, 5 Barr 151; Wilson v. Howser, 2 Jones 116; Zerbe v. Miller, 4 Harris 497; Henry v. Raiman, 1 Casey 360; Lloyd v. Lynch, 4 Id. 419. Were there then any circumstances in this case indicative of fraud or collusion which tended to throw doubt upon the honesty and fairness of the transaction ? It purported to be a sale of all the goods, wares and merchandise in the store occupied by tbe vendor including tbe fixtures and good-will. It was made to his brother after suit brought against him by th" plaintiff in error; and it was made on the day that the arbitrators were chosen on whose award the execution issued upon which the levy was made out of- which this controversy arises. In Twyne’s Case, 8 Coke R. 80, it was resolved that the transfer of all a man’s goods during the pendency of a suit against him is a mark of fraud, and the doctrine was recognised and approved by this court in Babb v. Clemson, 10 S. & R. 424, and Streeper v. Eckart, ubi supra. If this be the law — and the ruling has never been questioned — it was incumbent on the plaintiff to prove the payment of the consideration by other evidence than the recital of its payment, and the acknowledgment of its receipt in the deed of sale. Even if the acknowledgment of the receipt of the consideration was prim®, facie evidence of its payment; it was rebutted by the testimony of the subscribing witness that no money was paid by the plaintiff at the execution of the bill of sale, or at any other time, so far as he knew. As was said by Black, C. J., in Kaine v. Weigley, 10 Harris 184, “ If the consideration mentioned in the deed was not paid at the time the deed was delivered, it became tbe duty of the plaintiff to show that it was paid afterwards ; that it was agreed upon with no intent to hinder, delay or defraud creditors.”

As between the vendor and vendee the receipt is undoubtedly evidence, but it is not conclusive as between them, and may be rebutted as ruled in Hamilton v. McGuire, 3 S. & R. 355. As against the vendor’s creditors it is no evidence of the fact of payment. It is nothing but hearsay. The court below, therefore, erred in submitting the question of the payment of the consideration to the jury, and in not instructing them that as the plaintiff had not shown that he had paid the alleged consideration, the sale must be regarded as fraudulent in law, and void as against the vendor’s creditors.

Judgment reversed and a venire facias de novo awarded.