Huffman v. McIlvaine

Opinion by W. D. Porter, J., This was an action o_f trespass for an alleged illegal sale of personal property of the plaintiff, upon an execution against her husband. The plaintiff lived with her husband upon a farm in which he had a life estate. There was a mortgage of $2,098.58 upon the farm, and the husband was indebted in other amounts to various parties. Alexander & Company held two judgments against the husband, and on September 6,1897, they issued executions, which became first liens upon the personal property of Huffman, upon his farm. On September 9, 1897, Huffman, the execution defendant, and his father-in-law, Noah Jones, went to the banking house of Alexander & Company in Monongahela city, and there had a consultation with the execution creditors. Alexander & Company were not willing to accept a bill of sale for the property of Huffman, and discharge him of his indebtedness. It was finally agreed that Huffman should make -and deliver a bill of sale for the personal property of the farm, and an agreement to convey the incumbered life — 115 — estate in the land to Alexander & Company; that Alexander & Company should thereupon sell the property and assign the bill of sale therefor to Noah Jones, who should give to Alexander & Company his personal note for the full amount of the indebtedness of Huffman to the banking house, and that thereupon Huffman should be discharged of the debt, and the execution should be stayed and the judgment satisfied. All the parties went to the office of the attorney of Alexander & Company, and there a bill of sale was prepared by which A. Mcl. Huffman sold, assigned and transferred to Alexander & Company a lot of farming implements and stock upon the farm, the same being fully enumerated in the bill; also his life estate in the farm, for which he covenanted to make a more formal deed and transfer. - Alexander & Company immediately assigned this bill of sale to Noah Jones, with written direction that the deed for the life estate in the land be made unto Noah Jones, and thereupon Noah Jones executed an assignment and transfer of the same to his daughter, Anna May, wife of A. McI. Huffman, in consideration of natural love and affection, as well as an advancement, but saying nothing as to the life estate in the land, and at the same time delivered to Alexander & Company his note for $975, being the amount of the indebtedness of Huffman. On September 10, 1897, the executions of Alexander & Company against Huffman were stayed and the costs paid. Noah Jones, on September 11, 1897, rode over to the Huffman home, on the farm in question, and there delivered to his daughter, Anna May Huffman, wife of A. McI. Huffman, the bill of sale, told her that he gave the property to her and that he charged it as an advancement against her interest in his estate, and she accepted it on those conditions. On September 14, 1897, an execution was levied upon the personal property on the farm, included in the bill of sale, at the suit of R. C. Mcllvaine, S. R. Wright acting as constable at the levy and sale. The plaintiff promptly gave the parties notice of her title, but they proceeded and sold, notwithstanding that notice, and this action is the result. On September 15, 1897, Andrew McI. Huffman executed a deed for the life estate in the land, in accordance with the terms of the bill of sale to Alexander & Company, which deed was duly delivered and recorded the same day. — 116 — There was testimony that the plaintiff had, on either the evening of the 11th, which was Saturday, or on the 13th, which was Monday, of September, 1897, notified the hired man working on the farm that he would thereafter be working for her. The grounds of defense in the court below and the allegations of error upon this appeal were all based upon the allegation that the transfer of the property was fraudulent in law, because of retention of possession by the vendor. The learned court below instructed the jury that if the bill of sale to Alexander & Company was for full value, in satisfaction of the debt of A. McI. Huffman, yet if that transfer and what followed was made for the purpose of taking the property out of the possession of said Huffman and out of the grasp of his creditors, with a view to hinder, delay and prevent R. C. Mcllvaine, or other creditors, from taking it in satisfaction of their claims, then the transfer was fraudulent and the verdict must be for the defendant, and further submitted to the jury this question, “ Whether or not the transfer of this property by bill of sale here by Jones to Anna May Huffman, the plaintiff in this case, which at one time was A. Mcl. Huffman’s property, as has been testified to, was in good faith — was a bona fide transaction and not pretended or deceptive and collusive, and whether such change of possession was all that could be expected of the vendor, taking into view the character and situation of the property and the relation of the parties.” Under these instructions the jury found in favor of the plaintiff. The first five assignments of error are based upon the assumption that the sale was void, because Alexander & Company did not, during the moment that they had title to the property under the bill of sale, take manual possession thereof. This contention would entirely disregard the intention of the parties, which the jurjr have found to be bona fide and honest. Alexander & Company at that time had an execution which bound this very property, and, if the evidence is to be credited, would have wiped it out twice over. The purpose of Jones was to avoid this, and by giving the property to his daughter as an advancement enable her to retain the necessary implements and stock for the operation of the farm. Alexander & Company immediately assigned the bill of sale to Jones and received from him his note, releasing Huffman from liability. At the same time Jones executed a bill of sale trans — 117 — ferring the personal property to his daughter. She was not then present, and lived at a considerable distance. The whole negotiation was in effect but one transaction, and the result was to vest the title to the property and the right of possession thereto in Anna May Huffman, the plaintiff in this case. With reasonable promptness Noah Jones delivered all three bills of sale to his daughter and told her that the property was hers. There was probably more writing done than was absolutely necessary in this case, but we cannot see that, under the circumstances, any badge of fraud was exhibited, for the various bills of sale indicated the sources from which different considerations moved. Huffman desired to be rid of his debt to Alexander & Company; Alexander & Company demanded the individual note of Jones as a condition precedent to the release of Huffman, and it was agreed between them, in order to accomplish this result, that Huffman should sell and convey the property to Alexander & Company, and that Jones should deliver his note to Alexander & Company and receive an assignment of their title to the property. The consideration which moved Jones was the desire to provide for his daughter. The various transfers were simultaneous, and if Mrs. Huffman took such possession of the property as was required by law that was all that was necessary. To have driven the horses to Monongahela city and delivered them to Alexander & Company, and then for Alexander & Company to have driven them over to Jones, and then Jones to have driven them to his daughter’s, where they started from, when they all knew that that was the ultimate destination of the horses, would have been an exceedingly suspicious chain of circumstances, and one which the law certainly did not require them to go through with. The sixth assignment of error raises the question of the sufficiency of the evidence of the transfer of possession under the sale, as against the creditors of the vendor, to carry the case to the jury. It is argued that the submission of this case to the jury on the question of fact as to actual fraud, if held to be right, does away with the rule of law established in Clow v. Woods, 5 S. & R. 275. The rule laid down in Clow v. Woods is not so incapable of accommodation to modern conditions as is sometimes asserted. In his opinion in that case Mr. Justice Gibson clearly recognized the necessity of considering the re — 118 — lation of the parties and the character of the property and the uses for which it was intended, in determining what was or what was not a sufficient delivery of possession to be valid, as against the creditors of the vendor. He says: “ A settlement of personal property at the marriage of the owner is a fair transaction, and one which the policy of the law does not require to be deemed fraudulent. All the late cases in which the transfer has been sustained have gone on the ground that the want of delivery was absolutely necessary to effect some fair purpose of the parties.” Again: “ The inclination of my mind is, to give the statute a liberal, perhaps an enlarged construction, by putting the rule, requiring a change of possession, on grounds of public policy, and confining its exceptions to those cases, where, from the very nature of the transaction, possession either could not be delivered at all, or, at least, without defeating fair and honest objects, intended to be effected by, and which constituted the motive for entering into the contract.” The general rule is, that a sale of property is not good against the creditors of the vendor unless possession is delivered by the vendor in accordance with the sale. When the subject of the sale is capable of an actual delivery, such delivery must accompany and follow the sale ; but when the property is not capable of an actual delivery, a constructive delivery will be sufficient, and in such cases it is only necessary that the vendee assume the control of the property so as to reasonably indicate to all concerned the fact of the change of ownership. The modern cases which are sometimes said to have modified the rule of Clow v. Woods, have generally grown out of the relation of the parties. The sales were attacked, not because the vendee did not have possession of the property, but because the vendor had not been removed from contact therewith. When the vendor and vendee are members of the same family and the property consists of chattels used in, or in connection with, their common home, the vendee is not bound to turn the vendor out of doors in order to separate him from the property; a constructive delivery is sufficient: McVicker v. May, 3 Pa. 224; Evans v. Scott, 89 Pa. 136; Crawford v. Davis, 99 Pa. 576; McClure v. Forney, 107 Pa. 414; Renninger v. Spatz, 128 Pa. 524; Weller v. Meeder, 2 Pa. Superior Ct. 488. Between strangers open, visible, notorious and exclusive pos — 119 — session is the test of title in all cases where the rights of creditors are involved, for between strangers this rule is capable of enforcement. “ But this is not possible with reference to the personal goods of a married woman. She cannot use her property exclusively unless she lives apart from her husband. It was not the intention of the legislature to compel a separation in order to save the wife’s rights, but if the rule of exclusive possession were adopted the statute would be inoperative as long as they lived together: ” Gamber v. Gamber, 18 Pa. 363; Keeney v. Good, 21 Pa. 349. In the case of Skinner v. Kroh, 4 Pennypacker, 204, the wife purchased goods directly from the husband. The evidence of her title was a bill of sale. The husband and wife continued to live together on the farm, the situation of the property was not changed, and the husband continued his care and charge of it. It was held that it was not essentially necessary that the actual possession of the wife be to the entire exclusion of the husband. She must have a right to the possession, but is not required to live separately from him in order to have such a possession, as the law will protect. In the present case the position of the plaintiff is stronger than was that of the plaintiff last cited, for the. jury have found, and no doubt correctly, that the consideration for the transfer of this property was furnished by her father as an advancement. The property consisted of the farming implements and stock necessary for the operation of the farm, which was their common home. To send this property away from the farm would defeat the very purpose which her benefactor, her father, intended ; she could not send her husband away from the farm, and was not by law required to do so; nor could she herself leave her home in order to save the property. All that she could do under such circumstances was to assume such control of it as was reasonable under the circumstances. We are of opinion that the learned judge did not err in refusing to hold as matter of law that the delivery of possession was insufficient. The questions upon which the jury ought to have been required to pass were given them in charge, under full and proper instructions. The sixth assignment of error is dismissed. The seventh assignment complains of the action of the court in reading from two opinions of the Supreme court. Appel — 120 — lant oan hardly expect us to hold the law there cited to be erroneous. It is, perhaps, not a safe practice to read authorities to the jury, for the facts in no two cases are alike, and, as the opinions of the court frequently refer to the facts, it is a safe practice to avoid. The jury cannot always be expected to discriminate between the facts in the case they are trying and the facts in the opinion which they hear read. The extracts from the opinions read to the jury, which are assigned for error, did not particularly refer to the facts in their respective cases, and the law was applicable to the case in hand. The seventh specification of error is dismissed. The eighth specification of error relates to the measure of damages. It was conceded that the property which was sold at constable sale realized f255, and that this was sold under the execution issued by R. C. McIlvaine and executed by S. R. Wright. It is argued that because there was some testimony that part of this money was paid to the tax collector no recovery ought to have been permitted for that amount. The property was seized and taken by these defendants. If part of it went, to the liquidation of taxes for which it was legally liable, they ought to have shown it by some competent evidence, and having failed to do so, they have no right to complain of the instruction. Judgment affirmed.