Wilson v. Howser

The opinion of this Court was delivered by Rogers, J. The property in controversy was levied on a fi. fa. issued on a judgment'of John Field, for the use of Baldwin & Barlow v. Thomas Graham, who at the time was in the possession, and the apparent owner of the property. Inquisition was held and land extended. Afterwards an alias fi. fa. was issued on the same judgment, the same property levied on, inquisition held, and property condemned. The plaintiff in error contends that the second inquisition was erroneous and void. But although erroneous, it does not necessarily follow that it is void: In McCullough v. Guetner, 1 Binn. 214, it is ruled that after inquest has returned that the rents and profits will pay in seven years, the plaintiff cannot discontinue his fi. fa., and take out a new one without leave of the Court, because, as the Court truly says, the plaintiff might otherwise set aside the proceeding and levy again on the same land repeatedly, until he gets a jury to condemn it, which would take away from the defendant the benefit of the Act of Assembly. Had the defendant applied to the Court, no doubt they would have set aside the second inquest, if levied without leave of the Court; but having failed to do so, we will make every intendment in favour of the vendee of the sheriff. Although it does not expressly appear, we will presume the second execution was with leave of the Court, which would in all cases be granted where other debts were contracted in the mean time, which the property would not pay in seven years. Although he may, the creditor is not bound to take pos [116] session under the first inquest, and, if other debts are contracted, he may sell the lands of his debtor. Having omitted to object to the second inquest and sale, the debtor waives his right, as against the purchaser. It would be unjust for him to pocket the purchase-money, or which is the same thing, allow it to be paid to his creditors without exception, and. then object to the sale as null and void. There is nothing in the second bill. But it is contended there is error in the third bill, because the acknowledgment to the sheriff’s deed was signed by the prothonotary, not under the seal of office, and no record of its -acknowledgment is to be found. This defect is cured by the Act of 2d April, 1844, Purdon, 433; an Act relating to sheriffs’ deeds. “ The certificate of the prothonotary of any Court in this Commonwealth to an acknowledgment of a sheriff’s deed, heretofore made, though not under seal of office, shall be sufficient evidence of such acknowledgment, notwithstanding no other record was made thereof at the time of such acknowledgment; provided, that the provisions of this section shall not be construed to affect any bond fide holder or purchaser, who has neither actual or constructive notice of the execution of such sheriff’s deed.” As the plaintiff is not in condition to claim the benefit of the proviso, the Act rules the exception. This disposes of the bills of exception, the first being properly abandoned. But, independently of these considerations, the objection could not avail the plaintiff. The title being deemed good in a former action of ejectment, that of itself would show that the defendant was not a mere intruder, but entered under colour of title. This -tfould entitle him to defend against a plaintiff who claimed under a fraudulent or voluntary deed. We come now to examine the exceptions to the charge, one of which has something more substantial in it. Primd facie, the consideration, named in the deed, is the real consideration, and the presumption is, that it was paid by the vendee in good faith. But where there is proof, however slight, of fraud, the onus of payment is thrown upon the vendee, and other evidence than the receipt to the deed would be necessary to establish payment of the purchase-money : Rogers v. Hall, 4 Watts, 359. And this would seem, in view of the testimony, to have been the intention of the Court. If, therefore, there was nothing else in the case, I should not feel disposed to reverse the judgment on the first exception to the charge. But the Court further instructed the jury—“ If the deed was voluntary, that is, without consideration other than love and affection, [117] it might still he void, as against creditors, if at the time it was executed the grantor was largely indebted, or was engaged in a hazardous business, even although there was no actual intention of defrauding any one.” This part of the charge may have misled the jury, as the rule laid down by the Court is not true without qualification. For although a person may in the abstract be largely indebted, yet, if the debts are not large in proportion to his property, a voluntary conveyance may be good notwithstanding. This distinction is taken in Mateer v. Hissim, 3 Pa. Rep. 160, and is the undoubted law of this State. It is there ruled, that the statute of 13 Elizabeth does not render a conveyance void made by a man simply because he was indebted. The debts must bear some proportion to the property of the grantor, which may render the payment of his debts doubtful. To the same effect is Thompson v. Dougherty, 12 S. & R. 448; 1 Smith’s L. C. 34. This is the law in the case of voluntary deeds made bond fide, for love and affection, without any intentional fraud. When there is an actual fraud imputed to the grantor, the case depends on other considerations, which it is unnecessary at this time to notice. For the last exception the judgment is reversed, and a venire de novo awarded.