Smart v. Baroni

Per Curiam, This is an appeal from a decree dismissing a bill in equity. President Judge Matthews ¡in his opinion correctly said that the question is: “Whether the owner of real estate encumbered by a first mortgage and by judgment liens, who has entered into a contract with a third *297 person to purchase and foreclose the ¡mortgage in order to divest the judgment liens without paying them, • to purchase the real ¡estate at sheriff’s sale,: to manage and sell the same to divide’ the ¡profits, may, through the intervention of a court of'equity, regain the property or recover a share, of the profits. The Answer is'obvious that he may not do so. That such an agreement is fraudulent as to creditors, both under the common law and the provisions of the Uniform Fraudulent Conveyance Act of May 21, 1921, P. L. 1045, 39 PS 351, admits of no serious dispute. In March or April of 1932 the defendant Baroni, a real estate agent, advised the plaintiff that he could sell lot No.' 4 for $1,300.00 fin'd thérefifter the agent accepted $300.00 on account of the purchase price. An examination'of the record discloses the judgments, as. recited. at our third finding in addition to the -mortgage of $2,000.00 and certain liens of the city of Uniontown. The plaintiff, on- being advised of the state of the reeord, admitted' that he was finable to pay'the 'judgments. Thereafter, he had some, negotiations with the mortgagees concerning a release of lot No., 4 from ,the.lien;of the mortgage, but. he. was unable'to-procure such release. The mortgagees, ■ however, agreed ; to: accept' $1,000.00 principal find $100.00 interest in’ ffill” payment of the balance due. This was the state of things firhen.'.Baroni went to Lock Haven on May 29<, 1932, at. which time and place the agreement was executed and delivered. It is practically conceded that the agreement was intended as a ¡method whereby” the title of’ Smart ’ could bé conveyed without payment of his judgment creditors! In reality, such is the fair construction of the agreement itself and it is apparent in subsequent proceedings,-. Therefore, our eighth finding of-fact to .the effect-that the-agreement was made for the purpose of defrauding plaintiff’s creditors is abundantly ,and: completely; established,by, the record, None of* the other -findings is :in dispute;- ■ AIL-of them are simply recitals of. conveyances .and assignments duly recorded and of court proceedings, except, however, *298 the finding as to the execution and delivery of the agreement itself.” The findings made by the court below are all supported by the evidence and therefore they cannot be disturbed. The decree entered was on these findings a proper one. The decree is affirmed at appellant’s cost.