Irwin v. Hess , 12 Pa. Super. 163 ( 1899 )

Opinion by

Bbavbb, J.,

A writ of fi. fa. was issued upon a judgment obtained by the plaintiff against the administrator of the decedent and a levy made by the sheriff upon a parcel of ground conveyed by the decedent in his lifetime to his son. No sci. fa. was issued upon the judgment to bring in the widow and heirs. The bill of costs was not formally taxed before the issue of the fi. fa. The appellant claims that the fi. fa. should be set aside, (1) because no sci. fa. had issued to bring in the widow and heirs; (2) that the orphans’ court has exclusive jurisdiction to make sale of the real estate of decedent; (3) that the writ was prematurely-issued, because the bill of costs had not been formally taxed. The effort on the part of the plaintiff is to establish by legal steps formally taken the fraudulent character of the conveyance made by the decedent in his lifetime to his son. That deed bound the grantor and binds also his heirs and representatives. It does not lie in their mouths to assert the fraud. As against everybody, except persons intended to be defrauded, the deed of the decedent to his son was good : Drum v. Painter, 27 Pa. 148; Zuver v. Clark, 104 Pa. 222. The conveyance of the decedent to his son was good as against himself and his heirs and bad only as against creditors, if shown to be bad. “ His heirs have and can have no interest in the process by which the creditor seeks to recover it or its value from the fraudulent (or supposed fraudulent) vendee, and, therefore, they were not necessary parties to the suit against the vendor’s administrator, so far as it could be used to reach this land: ” Smith v. Grim, 26 Pa. 95; Drum v. Painter, supra.

As to the jurisdiction of the orphans’ court. In the case of Shontz v. Brown, 27 Pa. 123, cited by the appellant, in which one of the principal questions was whether the deed from father to sons was voluntary or for a valuable consideration, it is said: “ But, if the deed was for a valuable consideration and not voluntary, it vested the title in the sons and the father did not die seized, unless it was fraudulent in fact. If voluntary, the fraudulent intent resulted as a conclusion of law. If not voluntary, the fraudulent intent was to be established, if at all, as a matter of fact. This is putting the question in the most favorable light for the plaintiff and perhaps too favorable, for there may be some doubt of the jurisdiction of the orphans’ court, even if the deed was fraudulent as to creditors.” In Drum v. Painter, supra, decided at the same term, the regularity of the sale of the decedent’s title in real estate upon a writ of fi. fa. and proceedings in the common pleas was incidentally recognized, although the validity of the proceedings was not directly involved. It is to be observed that the plaintiff, in pursuing his writ of fi. fa., is simply taking one step in the direction of establishing the fraud which he alleges was practiced against him by the conveyance of the decedent to his son. The next step must necessarily be to acquire such title as he alleges was in the decedent at the time of his death. When such title is acquired, if at all, the party acquiring it must establish actual fraud, in order to overcome the title made by the decedent in Ms lifetime, the deed purporting on its face to have been made for a valuable consideration. The orphans’ court has jurisdiction to decree the sale of the real estate of a decedent for the payment of debts only when the decedent was seized of an estate at the time of his death; but this cannot be asserted unless it be alleged at the same time that the conveyance made by the decedent was fraudulent and, as to creditors, void. In view of all that has been said in the cases herein cited, we are not prepared to say that the orphans’ court might not have jurisdiction, particularly in a case where a legal fraud was manifest upon the face of the conveyance of the decedent or possibly where the administrator alleges that the conveyance was fraudulent as to creditors, but here the administrator denies that the land was part of the assets of the estate and is therefore not in position to interfere with a creditor who is pursuing a mode recognized in Drum v. Painter, supra. Whether or not the orphans’ court would have jurisdiction in the present case it is not necesssay for us to decide, inasmuch as we are satisfied that its jurisdiction is not exclusive.

As to the failure to tax the bill of costs in accordance with the rule of court, it is clear that the plaintiff having paid or being liable to pay his witnesses could proceed to collect his judgment, without attempting to collect the costs. The failure to tax the bill, therefore, could not invalidate the writ of fi. fa., so far as the debt and interest and officers’ costs were concerned, and, even as to the plaintiff’s bill itself, the court has entire control of that and could impound it, if necessary, until any errors therein were corrected. It is not alleged, however, that the bill was in any manner erroneous. The rule of court in Lancaster county governing the taxation of costs itself provides that “No exceptions or appeal shall operate to stay execution or prevent the collection of. debts or costs ; but, when collected on execution or paid into court, the costs excepted to shall be retained, until the question is decided.” As was said in Becker v. Goldschild, 9 Pa. Superior Ct. 50, “Ample provision is made by (this) rule for the protection of the defendant in the •execution from fraud or imposition.” A rule of practice such .as is contended for by the appellant would be a convenient cloak for delay and fraud, to the chances of which meritorious and vigilant creditors should not be subjected.

On the whole case, as presented to us, the court below was •correct in maintaining the validity of the writ of fi. fa. issued .by the plaintiff and its decree is affirmed.