H. A. V. Post v. Berwind-White Coal Mining Co.

Opinion by Mr. Justice Mitchell, The hinge of this case is the character of the sale to Stevens. It maybe conceded, as it was by the learned ref eree, that Mundy, Sharp & Busch were vendees in possession, and that the outstanding legal title in Post being merely security to the vendor for the purchase money, could not prevail against an attaching creditor of the vendees. For the same reasons a bona fide purchaser for value if without notice would take a superior title and if with notice, though he would take subject to the legal title as security for the purpose named, yet his title would be good as against' all others. The learned referee finds that Stevens “ actually, for a valuable consideration, purchased, took possession of, and thereafter exclusively operated the plant.” This puts an end to any question of constructive fraud. It is true that the location and use [305] of the property was not changed. It could not well be, as it was employed in the work of removing the islands in the Delaware river opposite Philadelphia, under contract with the United States, and had to stay where the work was. But a change of possession may be as well by the old owner going out and the new owner coming in while the property remains in the same place, as by the new owner taking it away to a new place. The difference is not in legal effect, but in facility of proof. With this cardinal fact thus established, the solution of the three questions presented by the appellant is not difficult. First, it is argued that even if Stevens’ title is good, it cannot be set up to help the plaintiff, Post. It is true that the rule in sheriff’s interpleaders is that the claimant must recover on his own title and not on one outstanding in a third person, but it has no application here because Post’s title is good against all the world but certain excepted parties, to wit: creditors of the Dredging Company having a lien by levy or attachment on the property, and such lien must be acquired while the property is in the ownership or possession of the debtor. The attaching creditor here had no such lien, for both title and possession had passed out of its debtor, the Dredging Company, before its attachment was levied. There was no title or interest of the Dredging Company left for the attachment to grasp, for it had all passed to Stevens prior to the levy. The attaching creditor was therefore not within the excepted class, and as already said, against all others, the legal title of Post was good and must prevail. Secondly, the question of legal or constructive fraud in the sale to Stevens has already been disposed of. The referee finds that there was no collusion or fraud in fact. It is true the change of ownership was not made as apparent as would have been prudent in view of the circumstances and the dealings of the parties Mundy, Sharp and Busch from whom he bought, but there seems to be no doubt that Stevens paid a fair price and thereafter operated the plant himself, with his own money, including repeated payment of this very appellant’s coal bills with his own check. We think on the evidence that the referee was entirely correct in his view of the facts. Thirdly, the appellant argues that even if the title and possession of Stevens were valid, yet the Dredging Company hav [306] ing retaken the property, and being in actual possession at the time of the attachment by its creditor, the latter’s lien must prevail. If this resumption of possession had been in pursuance of any contract or any right -which remitted the company to its prior title, or gave it a new one, the position would be sound. But it was not. The referee finds that it was “ entirely tortious,” and that “ without any shadow of right, Mundy, Sharp and Busch forcibly possessed themselves of the property and were in possession simply as any other wrongdoer would be in possession of property of which he wrongfully took possession, but which really belonged to other persons.” Of course such a possession could not give an attaching creditor of the wrongdoer any more right than the wrongdoer himself. Judgment affirmed.