Janney v. Howard

Opinion by Mb. Justice Heyebick, At the argument leave was asked to file an additional-assignment of error, and this request was opposed on the ground that exception had not been taken in the court below to the portion of the charge which was the subject of the proposed assignment. No formal bill of exceptions is to be found in the record, nor is there anjr other means of ascertaining the truth about which the counsel differ. This, however, is immaterial. The office of the bill of exceptions is to bring upon the record that which otherwise would not appear, and consequently could not be noticed by the superior court. Until the passage of the Act of Feb. 24, 1806, there was no other means of [343] getting the charge of the trial judge upon the record. But that Act gave to either party the right to demand that the charge be reduced to writing and filed of record; and this, it was held in Downing v. Baldwin, 1. S. & R. 298, made it, when filed, a part of the record, and superseded the necessity of a bill of exceptions. Whether it was necessary that it should appear affirmatively of record that the charge was filed in compliance with the requirement of a party to the cause was a question upon which the court drifted about, but it was finally settled in Lancaster v. De Normandie, 1 Wh. 49, that an assignment of error would not be considered when it did not appear by the judge’s certificate or memorandum that he filed the charge at the instance of one of the parties. And so the practice continued until the passage of the Act of March 24, 1877, P. L. 38. The first section of that Act was intended to remedy an evil pointed out by Woodward, C. J., in Wheeler v. Winn, 53 Pa. 122, and not fully remedied by the Act of April 15, 1856, P. L. 337. The first section makes it the duty of the trial judge to answer in writing, to be read to the jury, all points for charge which shall be presented to him before the close of the argument to the jury, and provides that “ the said points and answers thereto shall be filed immediately by the court or judge and become part of the record of the case for the purposes of error.” The second section was manifestly drawn with reference to the construction put upon the Act of 1806 in Lancaster v. De Normandie. It is in these words: “ The charge and answer of the court to points in all cases where filed shall be part of the record for the purpose of assignment of errors.” If it was not intended to dispense with the necessity for the appearance on the record of a request to file the charge it serves no purpose whatever, and it is not to be presumed that it was enacted without a purpose. Under it error may be assigned in respect to any part of a charge which has been filed, with or without request, and whether excepted to in the court below or not. The charge in this case was filed in the court below and sent up as part of the record, and, therefore, and because it seems necessary to the proper disposition of the cause, the additional assignment of error was allowed to be filed. That assignment of error is in respect to that portion of [344] the charge in which the learned trial judge said: “ Now, if Janney was legally, under all the circumstances of the case which you have heard, the owner; if you shall be satisfied upon consideration that, as between Kelly and himself, Janney was to be considered at that time the owner of this property, that he had acquired a valid title to it by the purchase, which he alleges to have taken place, then, notwithstanding the fact that Kelly had previously been the owner of the property, notwithstanding the fact that Kelly owed Howard the amount represented by Howard’s indebtedness, your verdict would have to be, would properly be as a matter of honesty and ought to be as matter of law, in favor of the claimant, Mr. Janney.” The vice of this instruction is that it makes the validity of the transaction as between Kelly and Janney the test of its validitjr as against the execution creditors of the former, whereas it is but one step towards perfection of title in the latter case. A sale without delivery of possession divests the ownership of the vendor as between him and his vendee: Hetrick v. Campbell, 14 Pa. 263; and the purchaser may, if the possession be withheld, maintain replevin for the goods: Boyle v. Rankin, 22 Pa. 168. But as against creditors and subsequent bona fide purchasers without notice, retention of possession is per se a fraud. This proposition has been maintained as a rule of policy for the prevention of fraud in an unbroken line of decisions from Clow v. Woods, 5 S. & R. 275, to the latest case on the subject, and is not controverted here. Indeed it seems to have been a mere slip on the part of the learned judge to make the test which he did, of the validity of the sale to Janney as against the execution creditor, because, while it was but faintly denied that as between Kelly and Janney the sale was bona fide, he was careful to instruct the jury that, in order to justify a finding in favor of the claimant, they must find that there had been such change of possession as would indicate a change of ownership. But as it is impossible to say how far the erroneous instruction may have misled the jury the judgment must be reversed. None of the other assignments of error are sustained. Those, only, which relate to the subject of change of possession require notice. The complaint of the fifth to the tenth assignments inclusive is that the court did not give binding [345] instructions that there had been no such change of possession as the law requires in such cases. To have so charged would have been clear error. It was in evidence that upon the execution of the bill of sale Kelly declared in the presence of witnesses that he delivered possession of the property to Janney and thereupon gave him the key of the stable in which the horses and wagons were kept, and went away from it, and staid away; that Janney took possession and put a man in charge for himself ; that the .drivers who had formerly been in Kelly’s employ entered into Janney’s service, drove the horses for him, collected bills for him and paid the money over to him; that bills were made out to patrons in his name, and that the execution creditor and others had notice of the sale and change of possession. If the facts were as stated the case was materially different from Stephens v. Gifford, 137 Pa. 219. In that ease there was no pretence that the claimant actually took possession of the property in person, or that it was used in and about his business, or that any sort of notoriety attended the transfer of title to him. The horses remained in the stable of the vendor by his permission, and the stable was within an enclosure which was in his actual visible possession. They therefore remained in the apparent possession of the vendor. The only point of similarity in the two cases is that the same person continued to groom and drive the horses, but it did not appear in Stephens v. Gifford, as in the present case, that he was notoriously using them in the purchaser’s business. The case more nearly resembles Barr v. Reitz, 53 Pa. 256, in which the delivery of the key of a house followed by removal of .the tenant was held to be a good delivery of possession of the goods contained in it by the tenant to one to whom he had sold them. The language of Agnew, J., in that case needs only the change of the names of the parties to be applicable to this if the facts be as testified by the claimant. He said: “ The delivery of possession was not merely formal or colorable ; but, by the removal of Brown and his entire disconnection from it, the property was left in the possession and control of Barr, who held the key and thus controlled the house in which it was locked up. He controlled it just as actually as though the property had been removed from Brown. The separation of the property from Brown was complete. How far Brown [346] might be liable to Darrah, his landlord, for the rent of a second year by his temporary holding-over is not a question in this case.” Nor is it material in the present case that the relation of landlord and tenant existed between Kelly and some other person in respect to the stable; that could not affect in the least the fact of actual visible possession. Neither is the fact that Kelly’s name remained upon the wagons of controlling importance: Hugus v. Robinson, 24 Pa. 9. Less unequivocal indicia of a changed ownership than were testified to by the plaintiff and his witnesses were held in Garretson v. Hackenberg, 144 Pa. 107, sufficient to protect a purchaser. But because of the error in the charge already pointed out, the judgment must be reversed. The judgment is reversed and a venire facias de novo is awarded.