Leach v. Alexander

Opinion by W. D. Portee, J., By a writing under seal, duly executed, Wilson Bare sold, assigned and transferred to John Leach and S. B. Leach all of his right, title and interest of, in and to a lease for real estate and certain fixtures, etc., in and about the premises, which were used as a butchering and stock yard plant. The consideration named is $315, and the writing concludes: “ The said Wilson Bare hereby delivers full possession of the said buildings, fixtures, yards and ground to the said S. B. and John Leach.” S. B. Leach sold and conveyed his interest to George Leach. This property was levied upon by the sheriff by virtue of an execution issued on a judgment of S. C. Alexander against Wilson Bare. A'n interpleader issue was framed at the instance of the sheriff, and at the trial of the cause the defendant urged that the transaction between the Leaches and Bare was understood and intended by the parties to it to be a mere collateral security for the payment of an indebtedness of Bare to the 'Leaches; and it was shown that, at the time of the transfer of the property, the Leaches were creditors of Bare in-an amount equal to the consideration mentioned in the transfer. The plaintiff in the issue objected to every offer of evidence which tended to impeach the writing; but it was admitted by the court, and the jury were then instructed to return a verdict for the plaintiff in the issue, for the reason that “ it is apparent that the title to the property embraced in the bill of sale is in the plaintiffs’ possession and they are entitled to retain the same until the debt is fully liquidated.” The writing is a plain transfer of the interest of Wilson Bare in all the property embraced in the levy, and there is no suggestion of fraud, accident or mistake in the execution of the paper under which plaintiffs took actual and exclusive possession. The execution creditor had actual notice of the written contract between the Leaches and Bare and that the former held the exclusive possession of the property before he issued his writ, and the only evidence adduced which directly affected the integrity of the writing was that of Wilson Bare, one of the parties to it, who sought to establish a contemporaneous parol agreement which, in effect, contradicted the terms of the writing and practically nullified it. The assignments of error all relate to the charge of the court, as the repeated objections of the plaintiffs to the admissi [382] bility of the evidence which affected the writing were not sustained. There was no such evidence of a retention of possession by the vendor as to raise a question of legal fraud. The plaintiffs claimed the property as absolute owners, and the issue was framed accordingly; if, therefore, the evidence only established the right of plaintiffs to hold the property as security for a debt, they had failed to sustain their claim, and the defendant was entitled to a verdict: Meyers v. Prentzell, 33 Pa. 482; Stewart & Co. v. Wilson, 42 Pa. 450; Dale v. Pierce, 85 Pa. 474; Waverly Coal Co. v. McKennan, 110 Pa. 599. The learned court below, in holding that, under the pleadings, even if the transfer of the property was as security for a debt, the plaintiffs were entitled to a verdict, because the debt had not been paid, was not in harmony with the authorities. The title which the plaintiffs showed was one of absolute ownership, evidenced by a written agreement under seal, followed by physical possession of the property. There was no evidence whatever indicating that the transaction was covinous, or that either Leach or Bare intended to defraud, hinder or delay the creditors of the latter. In the absence of such evidence Alexander stood in the same position as Bare, when it came to attacking the validity or varying the terms of the written agreement. The defendant attempted to prove a contemporaneous parol agreement which changed the character of the transaction to a pledge of the property as security for a debt, instead of the sale evidenced by the written agreement under seal. The only witness who testified to any facts tending to support the allegation of a parol contemporaneous agreement was Bare, the debtor, and his testimony is far from being clear and precise. It amounts to but little more than a statement that his understanding was that he was to get the property back when the debt was paid, but is very indefinite as to the nature of the parol agreement upon the part of Leach. In reply to the direct question, his answer indicated great uncertainty. “ Q. Did Mr. Leach agree to that ? A. Mr. Leach agreed to it so far as I know; I know nothing to the contrary; when the debt was paid, it was to come back to me.” H. H. Mercer, Esq., who prepared the written agreement, testified as follows, viz : “ Q. Did you put everything [383] into this agreement that was agreed on in your office at that time ? A. What do you mean by everything; they told me exactly what was there, and I put in the material parts in that lease. Q. As they were agreed on at that time ? A. Yes, sir.” Contracts under seal are not to be stricken down upon the uncorroborated testimony of one of the parties. The written agreement provided for a change of possession, and its requirements were fully complied with, and plaintiffs took exclusive possession of the property. The evidence produced by the defendant was not such as to warrant the court in submitting to the jury the question of the existence of a parol contemporaneous agreement, varying the terms of the sealed instrument. The plaintiffs were entitled to binding instructions. Judgment affirmed.