Fehley v. Barr

The opinion of the court was delivered, January 3d 1871, by

Sharswood, J.

— The first assignment of error is that the court below erred in admitting the testimony of P. A. Stockdale that he told Fehley before he bought, that Barr had a claim to the land for which the ejectment was brought. If the object of this evidence had been to prove that Fehley had notice of Barr’s title so as to affect him as a purchaser for valuable consideration, it would clearly be open to exception as coming from an entire stranger, to whom Fehley was bound to give no attention nor credit: Kerns v. Swope, 2 Watts 75; Miller v. Cresson, 5 W. & S. 284. But that was not the object of the testimony. It does not appear that there was any question raised at the trial as to Fehley being a boná fide purchaser without notice; nor could it have availed him, for he had constructive notice of the judgment upon which the sheriff’s sale to Barr was had, and of course of all the proceedings under it. The defendant below did raise a question of estoppel that Barr had concealed his title and encouraged him to go on and complete his purchase. Upon this question it was material to show that he had information, it mattered not from what quarter, that Barr had some claim; for it would tend to sustain the plaintiff’s theory that he had sought to entrap him into a declaration which might afterwards be set up as an estoppel. Besides, Fehley had himself been examined as a witness on his own behalf, and had denied or equivocated when asked whether Stockdale had given him this information. He said that he did not know that Stockdale told him anything about it. It was not a collateral fact immaterial to the issue, in which case his answer would have been conclusive. It was competent therefore to contradict him, and affect his credit with the jury.

The second error assigned is to the admission of the testimony of Montgomery — the creditor upon whose judgment the land had been sold by the sheriff to Barr — to the effect that he had not proved his debt before the register in bankruptcy. It is said that this contradicted the record. But we have no copy of this record on the paper-book, and it is always incumbent upon a plaintiff in error to furnish the court with the means of verifying the truth of his assignments. The defendant in error denies in, his counter-statement that there is any record of the proof of the debt before the register. All that is there as he avers is a list of debts furnished by the bankrupt to the register. We might dismiss this assignment upon this ground alone. But the Bankrupt Act of Congress of March 2d 1867 provides in the thirty-eighth section that copies of the records of proceedings in bankruptcy, duly certified under tbe seal of the court, shall in all cases be primá facie evidence of the facts therein stated. If then it did appear upon the record that Montgomery had proved his debt, it was only primá facie and not conclusive evidence of the fact, and could be contradicted by his or any other competent testimony.

The third assignment of error is to the affirmance by the court of the first point of the plaintiff below, which was in brief that a vendee at sheriff’s sale acquires the interest of the defendant in the land at the time the lien of the judgment under which it was sold attached, and that he is unaffected by any subsequent conveyance by the debtor. While the correctness of this proposition in general cannot be and is not denied, it is supposed to be erroneous in its , application to this case, because the defendant in the judgment had been adjudged a bankrupt before the sheriff’s sale. But the twentieth section of the Bankrupt Act before referred to expressly saves the lien of a judgment, unless indeed the judgment-creditor releases or conveys his claim to the assignee, and is admitted to prove his whole debt. He is entitled if he does not do so to proceed and realize whatever he can from his security, and'then come in and prove for the balance.

The fourth assignment of error is in affirming the plaintiff’s second point that the judgment of Montgomery being for the purchase-money of land, as to him there is no exemption law. The fourteenth section of the Bankrupt Act provides that there shall be excepted from the operation of that section which directs that the register shall convey to the assignee all the estate real and personal of the bankrupt, among other things, “ such property as is exempted from levy and sale upon execution or other process, or order of any court, by the laws of the state in which the bankrupt has his domicil at the time of the commencement of the proceedings in bankruptcy to an amount not exceeding that allowed by such exemption -law in force in the year 1864.” Now the third section of the Act of Assembly of this state, passed April 9th 1849, Pamph. L. 583, entitled “ An act to exempt property to the value of three hundred dollars from levy and sale on execution and distress for rent,” declares that the right of exemption as to real estate “ shall not be construed to affect or impair the liens of bonds, mortgages or other contracts for the purchase-money of the real estate of insolvent debtors.” There was therefore no error in affirming this point.

The fifth assignment of error is to the affirmance of the plaintiff’s third point, which was in substance that if under Montgomery's judgment Green, either from the fact that it was for purchase-money or that the judgment waives the right of exemption, could not claim the benefit of three hundred dollars under the Act of 1849, he could not under the Bankrupt Act. It is very clear from the express provision of the fourteenth section of the Bankrupt Act which has just been recited, that there was no error in affirming this point.

The sixth error assigned is in affirming the plaintiff’s fourth point “that the Court of Common Pleas of Jefferson county, Pennsylvania, had jurisdiction; and a sale of the real estate by 'the officer of that court would pass a perfect title to the purchaser, and the assignee in bankruptcy setting aside the land under a claim of exemption of the Bankrupt Act would not affect the said title.” Every branch of the proposition thus affirmed by the court is true and accurate. The assignee in bankruptcy is not a judicial officer. His act in designating and setting apart exempt property is not a judgment in rem conclusive against all the world. His act of setting apart this land to the bankrupt under the exemption clause of the Bankrupt Act did not divest the valid lien of a judgment-creditor clear of exemption and invalidate the title of the purchaser at sheriff’s sale under execution upon that judgment.

It follows from what has already been said that the court below committed no error in their answer to the defendant’s first point, which forms the subject of the seventh assignment. Under the circumstances of the case the proceedings in bankruptcy had no effect on the plaintiff’s title; the sheriff’s sale was made before the property in dispute was set apart to the bankrupt, and the subsequent acknowledgment of the sheriff’s deed vested in the purchaser as good a title as if no proceedings in bankruptcy had ever been commenced.

The answer to the defendant’s second point, which is complained of in the eighth assignment of error, substantially affirmed it, leaving to the jury to decide upon the evidence the fact whether Barr actually made such a disclaimer of title as was supposed, which was their province. The question of estoppel was therefore fairly submitted to the appropriate tribunal and passed upon by them.

Judgment affirmed.