Wickham v. Berwick Store Co. ( 1911 )

Opinion bt

Head, J.,

This was a feigned issue to try the title to a team of horses levied on and sold as the property of one Cole. Wickham, the plaintiff, who was the father-in-law of Cole, claimed that the horses belonged to him, and this proceeding under the sheriff’s interpleader act followed. It resulted in a verdict and judgment for the defendant, the purchaser of the property at the sheriff’s sale, and the plaintiff appeals. The learned trial court declined to instruct the jury, as matter of law, that there had been no such change of possession of the property in question as would validate the sale against an execution creditor of the vendor, but submitted that question under all of the evidence to the jury. If, as the learned counsel for the appellee argues, such binding instructions should have been given, the plaintiff could not have been injured by any of the rulings of the court complained of, and any discussion of the several assignments of error would be useless.

No good purpose would be served by an attempt at this late date to review and analyze what Mr. Justice Siiarswood aptly termed the “beadroll” of decisions since the case of Clow v. Woods, 5 S. & R. 275. Those which may be fairly said to have been more particularly aimed at the enforcement of the primary rule laid down in the leading case cited have been collated and discussed in the maj ority opinion of this court delivered by our late Brother Willard in Weller v. Meeder, 2 Pa. Superior Ct. 488; whilst, per contra, those which are directed rather to the recognition of the exceptions to that primary rule are cited and considered in the minority opinion of Orladt, J., in the same case. Of course, if a binding direction in favor of the defendant would have been proper, it must have been because, after giving to the plaintiff the benefit of every fact which the testimony tended to establish and every favorable inference from such fact, there would still have remained no question to be submitted to the jury.

We may then, for our present purpose, regard as established the following facts: Cole, the former owner of the team, resided in the town of Bloomsburg and kept his horses there. He was indebted to his father-in-law, the plaintiff, who resided in the adjoining county of Luzerne at a point some thirty miles distant from Bloomsburg. On December 24, 1907, the plaintiff paid a visit to Bloomsburg and had a settlement with his son-in-law. It was there agreed that the latter should sell his team of horses to the former for the sum of $300, which was a fair price. The consideration was paid by the cancellation of the indebtedness already referred to, then fixed at $220, and the payment of $80.00 in cash. A bill of sale for the horses, wagon, etc., and a receipt for the purchase money were duly executed. It was part of the agreement that Cole should work the team under the direction of the plaintiff; that each should pay one-half the expense of its maintenance, and each take one-half the profits, if any, from the operation. Acting under the orders of the plaintiff, Cole took the team on the second day following to the home of the plaintiff in Luzerne county. He remained there with it for several days awaiting the return of the plaintiff who had fallen sick at the home of his daughter. He was directed by letter to take the team and go to work hauling lumber for a man named Handbar, at which he continued for some time. On several occasions the team was brought back to the residence of the plaintiff and kept in his stable. It was still later taken to Shickshinny, where it was being worked in the manner described, when it was levied upon by the sheriff as the property of Cole. Although Cole continued to reside in Bloomsburg until April, 1908, the team was never kept there after it was removed to plaintiff’s residence on December 26. The transaction, as between the plaintiff and Cole, was honest in itself and founded upon a valuable consideration. The plaintiff was somewhat advanced in years, in delicate health, and could not use his property to advantage except by some such arrangement as the one entered into with Cole.

Although the testimony was seriously conflicting as to the character of the entire transaction, yet, had the jury been willing to accept the testimony of the plaintiff in its integrity, they would have been warranted in finding the facts above stated in his favor. Under such a state of facts, we do not think the learned trial court could have properly declared, as matter of law, that the sale was constructively fraudulent as against the execution creditor of Cole. On the contrary, we think the case was thus brought within the class of which McGuire v. James, 143 Pa. 521; Garretson v. Hackenberg, 144 Pa. 107, and Bell v. McCloskey, 155 Pa. 319, are illustrations. The doctrine of these cases, which it seems to us must be here applied, is well stated in the following excerpt from the opinion of Mr. Justice Stekrett in McGuire v. James: “The alleged insufficiency of plaintiff’s possession, or whether there was in fact such change of ownership and possession as, under the circumstances, could reasonably be expected, taking into view the character and situation of the property and the relations of the parties, was a question of fact for the jury, and not one of law exclusively for the court.” We must conclude, therefore, that the learned trial court could not have properly directed a verdict for the defendant.

Upon the trial considerable testimony was offered by the defendant to prove that after the alleged sale of the horses, Cole, who still had them in his visible possession, declared to various persons that he was the owner of the team and desired to sell it. These declarations, although made in the absence of the plaintiff, and without his knowledge, were admissible in a case like the present under the doctrine declared in Hartman v. Diller, 62 Pa. 37; Souder v. Schechterly, 91 Pa. 83, and Boyer v. Weimer, 204 Pa. 295. The general rule and the nature of the exception to it are thus stated by Mr. Justice Fell in the case last cited: “The general rule that the declarations of a grantor made after the execution of a grant cannot be used to impeach it, has been so far modified that when the good faith of a transfer has been attacked by creditors and some evidence has been advanced to show a common purpose or design by the parties to hinder, delay or defraud creditors, subsequent declarations by the grantor are admissible.” It is clear, however, that the probative value of such declarations must be confined to the determination of the question whether or not the sale was fraudulent in fact or honest and bona fide. If it be determined under all the evidence that the sale when made was in fact honest and valid, it is manifest that subsequent declarations of the vendor could not be considered as either admissible or sufficient to disturb the title which the vendee had honestly acquired.

The first point for charge presented by the plaintiff was as follows: “If the jury believe that the sale was bona fide, any subsequent conversation of Cole would not affect its validity.” This point was refused. In thus ruling, we are constrained to hold that the learned trial court fell into error because if the jury found, as the point assumes, that the sale when consummated was bona fide, then the general rule already indicated would apply and there would be no room for the operation of the exception to it because such exception can be operative only on the theory that the sale was fraudulent in fact.

An examination of the remaining assignments of error discloses no ground for a reversal of the judgment and they may be dismissed without further consideration. The first assignment of error is sustained.

Judgment reversed and a venire facias de novo awarded.