Haak's Appeal , 1882 Pa. LEXIS 15 ( 1882 )

Mr. Justice Trunkey

delivered the opinion of the court, April 17th 1882.

By divers conveyances, delivered and recorded on April 6th 1871, for a nominal consideration, the real estate of Charles H. Miller was vested in his wife, Elvira L. Miller. Haak’s judgment was a lien at and before the time of the delivery of ithe deeds. Miller was then indebted to Klopp, who obtained judgment on March 23d 1872, which was not revived until June 1st. 1877. On the 9th of March, 1876, Haak’s judgment was revived. The land was sold by virtue of an execution issued upon Klopp’s judgment and the court, confirming the auditor’s report, ruled that Haak’s judgment was not entitled to share in the distribution. This ruling is assigned as error.

The statute of 13 Eliz., relating to fraudulent conveyances, provides that any conveyance of land, made to the end, purpose and intent to deiay, hinder or defraud creditors, shall be deemed and taken to be clearly and utterly void, only as against such person or persons, his or their representatives, heirs or assigns whose actions, debts or damages, by such conveyance, shall or might be, in any way, disturbed, hindered, delayed or defeated. As between the parties, and as respects everybody not included among those intended to be defrauded, the deed is valid. A subsequent creditor can only avail himself of the fraud which was practiced against him. Unless there is evidence that the grantor intended to withdraw his property from the reach of his future creditors, his voluntary conveyance is not void as to such creditors, although at the time of its execution he owed debts, the collection of which might be delayed, hindered or prevented by the deed: Harlan v. Maglaughlin, 9 Nor. 293. And the deed is not fraudulent as to a creditor whose debt was secured by judgment or other lien on the land. Necessarily, the grantee takes subject to the lien, and the creditor may pursue the land just as if it had been conveyed to one who purchased in good faith for a full consideration. The prior lien creditor may follow the land, irrespective of changes in the title, whether honest or dishonest. A judicial sale on his lien vests in the purchaser the title which the debtor had when the lien attached, and divests that of the debtor’s grantee. But when the judgment is obtained after the conveyance, if such conveyance was in good faith for full consideration, the creditor has no remedy against the land; if fraudulent as to the creditor, he may sell the grantee’s title, which sale will not discharge the prior liens, nor will the proceeds be applied to their payment: Byrod’s Appeal, 31 Pa. St. 241; Fisher’s Appeal, 33 Id. 294; Hoffman’s Appeal, 44 Id. 95 ; Dungan’s Appeal, 88 Id. 414.

Nothing has stood in Haak’s way to hinder the collection of his judgment out of the land. If he neglected to notify the terretenantwhen he revived his judgment, that fact works no change in his relation to creditors whose debts were not liens; nor does it make a deed fraudulent as to himself, which was valid before his neglect. 'When it was revived Miller had no title. The title vested in Elvira L. Miller is void only as respects the creditors of Miller who had no lien, and the fund was raised by sale of that title at the suit of such creditors. Lions prior to the inception of her title are not discharged, and if the holder of such a lien suffered it to die he cannot participate in the distribution of this fund.

Haalc was the legal plantiff in the judgment and upon his petition as “ agent of Esther Kinett,” disputing the right of the purchaser to the purchaser money, the auditor was appointed. At' the beginning of this contention he appeared as agent of the equitable plaintiff and will be deemed as having so acted in taking the appeal. We treat the record precisely as if the unauthorized amendment had not been made, and, taking it as it was when certified, the motion to quash the appeal must be denied.

Decree affirmed, and appeal dissmissed at the costs of appellant.