Miles v. Lewis & Barrowman

Mr. Justice Tiutnkey delivered the opinion of the court March 21st, 1887. In Damon v. Bache, 55 Pa., 67, it was said that no wrong can be committed in the pursuit of legal rights by lawful means. Therefore a vendor of land upon request of the vendee because of his indebtedness to others, may bring an action of ejectment, take a confession of judgment to be released on payment of the sum due and owing by the vendee at a stipulated time, and on failure of the vendee to perform the condition, issue execution and recover possession of the land. It matters not that the vendee suggested the action, and had some expectation in favor of his father and mother, for the vendor did nothing wrong in vigilantly enforcing his legal rights, and, where there is no wrong, there can be no fraud. The evidence in that case was insufficient to warrant the inference of an intent on the part of the plaiutiff in the action in ejectment, to hinder or delay a creditor of the vendee. Where the owner of the equitable title, being indebted to divers persons, confesses judgment to the vendor in ejectment, conditional for paj^ment of the purchase money, the judgment will not be set aside in favor of the vendee’s other creditors, if there is no evidence of fraudulent intent. Judgment creditors of the vendee must take care of themselves, and in case there is no actual fraud, they cannot complain that the plaintiff, in the amicable action and confession of judgment in ejectment, allowed the time givdn for payment of the money to expire before filing the confession of judgment in court, for that fact of itself does not show fraudulent collusion to hinder [588] creditors: Price’s Appeal, 2 Com. Pleas R., 79. But it was remarked by Justice Gordon : “ Had other circumstances indicated a collusion between the parties for the purpose of defrauding the appellant, this retention of the confession until the last day of grace would undoubtedly have been evidence bearing upon the fraudulent intention.” Land was sold by articles of agreement, and nearly $700 of purchase money remained unpaid, a portion thereof not due. The vendee had made improvements, and his equitable interest was worth $2,000; judgments were entered against him exceeding $3,000, and on one of the judgments execution had been issued, and the property advertised for sale. On the day before the date fixed for the sheriff’s sale, the vendee confessed judgment in ejectment, without stay, in favor of the vendor, who immediately issued execution and recovered possession. There was no direct evidence of an agreement or promise by the vendor in favor of the vendee or his family; nor was there evidence that the vendee had an expectancy in favor of his parents. The unusual haste, the agreement making all the purchase money due, with the other facts, were sufficient, as remarked by the present Chief Justice, to “naturally lead the mind to the conclusion that the primary object of the arrangement was to remove the estate of McNamara out of the reach of his creditors.” And, as to them, the judgment in ejectment was void: Forrester v. Hanaway, 82 Pa., 218. In this case, the amicable confession of judgment in ejectment, to be released on payment of $344.53, purchase money, in ten days, was signed May 12th, 1877, and filed in court twelve days thereafter. Execution was issued on the day the judgment was filed, and on the next day the plaintiff and sheriff went to the premises, whereupon the defendant took a written lease for the same, and the sheriff returned his writ showing he had delivered possession as commanded. At the time of this transaction, the vendee was indebted by judgment in favor of the Miners’ and Laborers’ Building and Loan Association $1,000. There is evidence tending to show that the vendee’s interest in the land was worth the amount of that judgment. Had the jury believed the testimony of Benjamin Lewis, they would have been warranted in finding that he told Thomas Barrowman that said Association was about to push its judgment to collection, and that Lewis and Barrowman agreed to enter the amicable action and confession of judgment in ejectment for the very purpose of hindering said Association from reaching the property. He says that it was understood between them that he paid no rent, that the payments of nom [589] inal rent were to apply on the purchase mone3r. His testimony ought to be considered in connection with the short time given in the confession of judgment for payment of the money, the filing of that judgment, and the issuing of execution at the same time, and by the contemporaneous service of the writ by the sheriff, and the execution of the previously prepared lease. Barrowman contradicts Lewis, and his testimony is not without some corroboration. But the disputed questions of fact were for the jury, not the court. The assignments of error, except the fourth and fifth, are sustained. The fourth is not sustained for the reason that, if the plaintiff is entitled to recover, it is because the amicable action in ejectment, with judgment confessed, was collusive and fraudulent as to the judgment creditor named, and the plaintiff is not bound to tender or pay any money to the vendor. The defendants contend that this case is within the principle ruled in Martin v. Berens, 67 Pa., 459, and Thorne, McFarlane & Co. v. Warfflein, 100 Id., 519, which applies where one party to an instrument seeks to vary, reform or set it aside by oral testimoiyn But here the parties to the judgment in ejectment are bound by what they did — they are competent witnesses — and should Barrowman admit that Lewis tells the truth, Lewis is bound b3r the judgment and lease. He would not be heard were he to set up the collusion to hinder his creditor for the purpose of defeating the result of the judgment as to himself. As to all persons, except the creditor sought to be defrauded, the judgment in ejectment is valid. A creditor who seeks to avoid that judgment must satisfy the jury of collusion between the parties thereto to defraud him. The purchaser at sheriff’s sale, or person holding under him, attacks not the existence or validity of a writing or judgment, but he charges that the judgment was eollusively confessed and entered for the purpose of hindering or delaying the creditor on whose judgment the property was sold. The burden is on him to make out his case under the rules of evidence applicable in actions at law; not under the rule in equity" that the equivalent of the testimony of two witnesses is necessary to overcome the responsive answer to a fact averred in the bill. The plaintiff alleges and must prove that the parties in the judgment, execution and lease, though unassailable as to themselves, intended thereby to defraud the creditor. Judgment reversed and venire facias de novo awarded.