Ball v. Campbell , 134 Pa. 602 ( 1890 )

Opinion,

Mk. Justice Mitchell:

Where a party claims as a bona fide purchaser for value, against an asserted trust or fraud, it is incumbent on him to prove affirmatively the payment of the consideration relied on, and the mere receipt of his grantor or vendor, even, though it be in a deed, will not be sufficient for that purpose against third parties. Such receipt. is prima facie evidence against the grantor and those claiming under him, but against others it is no evidence at all: Lloyd v. Lynch, 28 Pa. 419; Redfield etc. Co. v. Dysart, 62 Pa. 62; Baum v. Tonkin, 110 Pa. 569. And, as the defence is founded on good faith, as well as consideration paid, the knowledge of the party is always evidence relevant upon that question.

Appellant is therefore clearly right in his second and third specifications of error, as general propositions .of law. But, unfortunately for him, he has no case to which these propositions can apply. As was said in Redfield etc. Co. v. Dysart, supra, “ where there is proof, however slight, of fraud, the burden 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.” But there must first be such proof, and more than a scintilla. A careful examination fails to show any evidence in the present case which should permit a jury to find the alleged fraud. The principal evidence, the deposition of Benjamin Ball, and the notes of Hulett’s testimony in another case, seems to us to have been admitted without sufficient ground laid for that kind of evidence ; but, taking it as it stands, all that it proves is that Wheelock, an unquestioned creditor to a large amount, desired to take the land as security for his claim, and that Ball agreed to the sale as a means of passing the title for that purpose. No intent is shown to defraud other creditors, nor any knowledge that there were any such creditors. Nor is it even now alleged that in fact there were any other creditors except the present plaintiff with his secret note, not claimed to have been- due at the time of the transaction between his father and Wheelock, not entered up till four years after it was apparently due and seven years after the sale to Wheelock, and not made known in the meantime, though the circumstances were such that, if it had been an honest debt, it is scarcely conceivable that it should not have been asserted at the time of the ejectment by Wheelock, to which not only his father, but plaintiff himself, was a party. The conduct of Wheelock subsequent to the sheriff’s sale is equally clear of any evidence of fraud. The testimony of Hulett, and Wheelock’s own letter, show that he admitted holding title subject to redemption by Ball; that he waited beyond the agreed time; and that “ he hoped it would be redeemed,” so that he would get his money. In all this there was nothing beyond the legitimate efforts of a creditor to obtain payment of his debt.

The case was altogether too barren of evidence of fraud to go to the jury, and, though the learned judge gave some reasons in which we cannot concur, his action in directing a verdict for the defendants was entirely right.

Judgment affirmed.