Raymond v. Schoonover

Opinion by Mr. Justice Mitchell, This case presents one of those attempted shortcuts which not unfrequently prove to be the longest way round. Plaintiff sold the property replevied by him to the Saylorsburg Clay Company, a partnership, under an agreement whereby the title was to remain in the plaintiff until the property was fully paid for. The agreement was valid between the parties, and against every one else, until a superior right intervened. No such right appears in the present case. The defendant had no title at all of any kind. He was the assignee for the benefit of creditors of one of the individual partners, and as such had no right to the possession of any part of the firm property. As against him the plaintiff’s title is clear. This the learned judge substantially ruled at the trial, but he allowed the assignee to defend under the title of the Stroudsburg National Bank, claiming to be a lien creditor of the individual partner assignor, on the ground that the property in question, machinery, had as fixtures become part of the realty, the legal title to which was in such assignor. The case was accordingly left to the jury on that question with direction to find for the defendant if the question was answered in the affirmative. But in so directing the court fell into error. The issue was not broad enough to carry the verdict, for even if the Stroudsburg Bank was in position to assert the lien of its judgment on these fixtures against the title of plaintiff, never [357] theless tbe lien gave no right of possession, and therefore in that view of the case the verdict should have been directed for the plaintiff, with a special finding whether the property was or was not subject to the lien of the bank’s judgment. The judgment is admitted to be less than the value of the machinery, and there is therefore a surplus of such value unquestionably the property of plaintiff, of which he has been deprived by the form of the verdict. Had there been the special finding the equity powers of the court might have been competent to do justice to the several interests involved, even under the disadvantage of a defense made in the right of a party who was not on the record, and who might or might not be in position to have been bound by the verdict bad it been adverse. But as there was no such finding the judgment must be reversed, and we are of opinion that the case should be tried in the regular way, on the issue between the parties of record. On that issue the verdict must, on the undisputed facts, be directed for the plaintiff. If the bank desires to assert its claim, it must do so in its own name and by its own appropriate proceeding. This disposition of the case renders it unnecessary for us to consider the assignments of error to the charge on the subject of fixtures in connection with the testimony as to the intent to put the land also into the partnership as part of the brick-maldng plant. We leave all those questions until they shall be presented by the parties really concerned with them. It may be well again to call the attention of counsel to the fact that the second to the seventh assignments inclusive are in entire disregard of the rules of court. They stop with the overruling of the objections to questions, and contain nothing to show that any answers were given-by which appellant was prejudiced. In strict practice such assignments should be entirely disregarded, and counsel violate the rule at their peril: Cornish v. Hooker, 141 Pa. 138; McElroy v. Braden, 152 Pa. 78. Judgment reversed and venire de novo awarded.