Zuver v. Clark , 1883 Pa. LEXIS 254 ( 1884 )

Mr. Justice Trunkey

delivered the opinion of the court, November 12th 1883.

As against every body, except persons intended to be defrauded, the deed by McCready to Nancy Zuver vested a good title in her for the land in controversy. Joseph Zuver was as completely divested of title as if the conveyance had been made to his wife in good faith for a full consideration in money ; and if void as to his creditors, yet the title was changed, and a sheriif’s sale upon a judgment obtained against Joseph Zuver after the delivery of the deed would be subject to liens which existed at and before the «date of delivery. A sheriif’s deed would pass to the purchaser all that was conveyed to the fraudulent grantee, and as such grantee took subject to liens, if any, the purchaser at sheriff’s sale would take upon the same terms. Lien creditors are not included among persons who may be defrauded by the conveyance of land, for they may follow the land irrespective of all changes in the title, honest or dishonest: Byrod’s Appeal, 31 Pa. St. 241; Fisher’s Appeal, 33 Id. 294. But the deed being void as to the defrauded creditors, as regards them, it is still their debtor’s estate which is sold in satisfaction of their debts, and the purchaser obtains the right to contest and avoid the conveyance: Hoffman’s Appeal, 44 Pa. St. 95; Jacoby’s Appeal, 67 Id. 434. Should a surplus remain after paying the debts, it would belong to the grantee, for the grantee’s title only fails so far as it stands in the way of the creditors.

At the time Samuel Zuver obtained his judgment, Nancy Zuver was the apparent owner of the land. He was the purchaser at the sheriff’s sale made by virtue of a fieri facias issued on his own judgment. Indorsed on the writ is a waiver of inquisition purporting to be signed by Joseph and Nancy Zuver. It may be conceded that prima facie the waiver is genuine, having been taken by the officer, and returned with Ivis writ. The defendant objected that the waiver was a forgery, but the court ruled that she could not set up the want of inquisition, and overruled her offer to prove the forgery, and that there had been no waiver of inquisition. That was error. Whether the grantor, or the grantee, in the alleged fraudulent conveyance, is the party who can legally waive inquisition is a question not raised at present; the cause was tried as if the defendant had no right to object to the plaintiff’s title.

It has already been seen that the right to contest Nancy Znver’s title and possession can only exist in a creditor or purchaser at sheriff’s sale. If that sale was void, the purchaser Avas Avithout footing to make the contest. A creditor cannot oust her, or contest her right, save by due legal proceeding. Were he to intrude into possession, he could not defend on the ground that her deed is void or voidable. He must obtain judgment, and pursue the proper legal means for collection of "his debt, and then a fraudulent deed shall not block his way ; but he is not able to thrust the deed aside until he meets it with valid process, or with title founded on a valid judicial sale of the property.

A sale of land under a fieri facias without inquisition, or waiver thereof, is unauthorized and void. A void sale is not confirmed by a distribution of its proceeds amongst the judgment creditors of the debtor: Gardner v. Sisk, 54 Pa. St. 506; St. Bartholomew’s Church v. Wood, 61 Id. 96. Nothing can be added to the opinions in these cases in support of the points decided, nor need other cases of like import be cited. In St. Bartholomew’s Church v. Wood there was a pretended waiver of inquisition, but it was held that testimony was admissible to show that, in fact, there had been no waiver.

The third specification of error cannot be sustained. As printed in the paper-book, the objection to the witness George E. Zuver materially differs from the bill of exception which shows that the objection was to his competency to testify. He was competent with respect to matters that had occurred after the death of his father, and if incompetent to prove events prior to said death, the objection should have been pointed to that period.

The defendant’s first and second points should- have been affirmed without the added qualification. If Samuel Zuver’s ' debt was paid, or a satisfactory arrangement made with him for its payment, or if he approved or recommended the conveyance of the property to Nancy Zuver, he was not a person intended to be defrauded, aud the conveyance was valid as against him. If the conveyance was void as to other creditors, and not as to himself, that fact could in no way work to his advantage. As well might Joseph Zuver have attempted to avoid the conveyance as one of his creditors who advised and. approved the making of it. None but a person intended by the parties to the conveyance, to be hindered, delayed, or defrauded, or one holding under such person, for instance, a purchaser at judicial sale in the collection of a debt due such person, can avoid the conveyance ; for only as against such person or persons is the deed void under the statute of fraudulent conveyances.

Judgment reversed, and venire facias de novo awarded.