Yost v. Smith, Kline & Co.

Mr. Justice Gordos delivered the opinion of the court, March 31, 1884. There is not, in this case, the slightest evidence of actual fraud, whether in fact or intention. We discover no impeachment of the regularity and rectitude of the .judgment of Elizabeth and Martha Shoffner, upon which the goods in controversy were sold: the sale upon the fi. fa. was conducted in an orderly and legal manner, in the presence of a large number of people who had opportunity to bid bad they seen fit so to do; the property, if we are to believe the sheriff's appraisement now before us, brought a full and fair price, and that it was struck off to Smith, Kline & Co., resulted from the fact that no one saw fit to outbid them. The only question then, of the slightest moment is the one regarding the manner in which the goods were sold. They were divided into eight or ten parcels and thus offered for sale to the persons then and there present. This arrangement was made by the sheriff under the direction of the counsel of the plaintiffs in the writ, and with the assent of the defendant. It is now alleged that this was a sale of the goods in mass, and per se fraudulent as to general creditors. In support of this proposition the ease of Klopp v. Witmoyer & Arentz, 7 Wr., 219, is cited. We can assent neither to the allegation thus made, nor to the application of the case cited. This was not a sale of the goods in mass, but in separate lots or parcels, and such a sale is forbidden by no Act of Assembly or policy of law, and this especially when it is so made by direction of the plaintiffs in the writs and the defendant. How, under such circumstances, or any others not involving fraud, a general creditor can be affected we cannot understand. What if these goods had sold for three times the amount for which they did sell? Yost was in no position to claim the money. As the sheriff well said to him, he, not having an execution, was in no position to direct liow the sale should be conducted. After satisfying the executions then in the officer’s hands, the balance of tlie money must have gone to Shoffner, the defendant. There were, therefore, none interested in the mariner and mode of sale but those who assented to it, hence there are none left who can be heard to complain. Neither does the case cited support the contention of the plaintiff in error, but [632] the contrary. That case appears twice in the same book: (7 Wr., 219-226). In the first, the sale was held to be void, because an entire stock of coal and lumber was sold in mass. When it came up again, after the second trial, the sale though in mass, was held to be good, and this for the reason that it was proved that the defendant had assented to it. The reasoning which supports this ruling is concise and clear. The sale, as it appeared in the first case, was held void because it had neither the sanction of law nor of the owner of the goods ; in the second case it was held good because made under authority from the owner. The obvious character of this reasoning will be apparent when we reflect that a bona fide sale of the goods to a creditor in satisfaction of his claim would, on all authority, have been good, and surely that there was a public instead of a private sale to the creditor can make no difference. Applying this same reasoning to the case in hand, and the contention of the plaintiff in error will be found to be baseless. The debtor might lawfully have transferred the goods in controversy to the Shoffner sisters or to Smith, Kline & Co. in satisfaction, in whole or in part of their claim. To a transaction of this kind, if made in good faith, other creditors could not object, and it is impossible to comprehend how it can be that a public sale of the same character and with the same lawful intent, can be regarded as fraudulent per se, or how it can be effectively used even as evidence of fraud. The judgment is affirmed.