Collins v. McKee ex rel. Truby

[215] Opinion bv Mr. Justice Sterrett: In his petition to open the judgment entered by warrant of attorney against himself and his sureties, Isaiah Collins, one of the plaintiffs in error, alleged he had “a full, just, and legal defense and set-off to the whole of said judgment,” in this: that prior to the closing of the bank, represented by the legal plaintiff below, he became bona fide and for a valuable consideration the holder and owner of a certificate of deposit issued by the hank to James Collins for $35-0, a sum exceeding the judgment and costs; that he thereby became a creditor of the bank, to that extent, before it suspended and prior to the maturity of the note on which judgment was entered, and that, instead of his owing the bank anything, it is indebted to him about $20. Upon these allegations of fact, the court of common pleas opened the judgment, for the sole purpose of enabling the defendants therein to interpose the defense of set-off specified in the petition. It was, therefore, incumbent on them to prove affirmatively, on the trial, that prior to the assignment by the bank for the benefit of creditors, Isaiah Collins was the bona fide holder for value of the certificate which they claimed the right to set off against the note on which the judgment was entered. If they failed in that, as we think they did, Hie learned judge was clearly right m withdrawing the case from the jury and directing a verdict in favor of the assignee for the amount of the judgment note and interest. It was clearly shown by un contradicted evidence that on March 15, 1882, the bank closed its doom, and on the 17th of same month, early in the day, assigned all its property and effects to the beneficial plaintiff below, for the benefit of its creditors, and that the deed of assignment was forthwith record ed. As to the certificate of deposit, the evidence was equally clear and conclusive that Isaiah Collins did not become the owner thereof until the day the assignment was executed and delivered. His own testimony establishes that fact. After testifying to previous conversations with James Collins, in relation to obtaining the certificate from him for the purpose of taking up the judgment note, then in bank, he says: “The certificate came into my possession on March 17.” “That is the day he gave it to me. He came to me and said 'Here is that certificate we were talking about,’ and he says 'You can fix it up with me again — the balance that is coming to me.’ That is the conversa [216] tion on the 17th of March when he handed it to me. At that time I knew there was a report that the bank was closed, but everybody had confidence in that bank. I heard the report that the bank closed before I got the certificate, but I didn’t know it. I have paid something to James Collins for this certificate. I have done work for him, but there is no settled account” He further testified that the certificate of deposit, which was payable to the order of James Collins, was not indorsed by him until March 17, when it was delivered. It was not enough for the plaintiffs in error to prove that one of them acquired title to the certificate, on the day the assignment was executed. As already stated, it was necessary for them to show affirmatively that he was the bona fide holder for value prior to the delivery of the deed of assignment; in other words, that the right of set-off actually existed before the trust for the benefit of all the bank’s creditors was created. In Read v. Robinson, 6 Watts & S. 329, it was held that a common-law conveyance, given to an agent for transmission to the grantee, vested tire title in the grantee forthwith, though ignorant of the transaction; and that so far as an assignment in trust for the benefit of creditors is concerned the express refusal of the assignee to accept would not invalidate it. To the same effect is Mark’s Appeal, 85 Pa. 231. In the case under consideration, the assignment, without doubt, took effect forthwith on its execution and delivery, and that was early in the day of March 17. Notwithstanding the fact that acquisition of title to the certificate and creation of the trust for ihe benefit of creditors both occurred on the same day, it was competent for plaintiffs in error to show that the former was first in order of time. The legal fiction, that- there are no fractions of a day by wdiicb acts done during the day relate back to its commencement, does not necessarily apply in cases like the present. Thus it was held in Patterson’s Appeal, 96 Pa. 93, that where a judgment was entered on the same day but after the death of the defendant debtor, the legal fiction does not apply; and on the fact being shown, the judgment is not entitled to priority of payment, out of proceeds of the sale of real estate, over the claims of general creditors. It is there said by Judge Hawkins, whose opinion was adopted by this court: “In Mechanics’ Bank v. Gorman, 8 Watts & S. 308, it was held that it was competent to show at [217] what time of the day a voluntary assignment was made, with a view to affect the lien of a judgment. The same point was ruled in Boyer’s Estate, 51 Pa. 432, 91 Am. Dec. 129. So in Ex parte D’Obree, 8 Ves. Jr. 83, Lord Chancellor Eldon held it was competent to show whether an act of bankruptcy was committed before or after a judicial act. To the same effect are Tilomas v. Desanges, 2 Bain. & Ald. 586, and Sadler v. Leigh, 4 Campb. 197. So in Lanning v. Pawson, 38 Pa. 486, circumstantial evidence was held admissible to show that the defendant was in fact dead at the time of the entry of the judgment.” There was no evidence tending to show that the certificate of deposit was indorsed by the payee or delivered prior to the assignment, nor that Isaiah Collins, the indorsee, acquired title thereto before that- time. On the contrary, the only evidence on the subject tended strongly to prove the reverse. Having thus failed to establish the controlling fact on which their defense was grounded, plaintiffs in error have no just reason to complain of the action of the court in directing a verdict for plaintiff below ; and, hence, the ninth specification of error is not sustained. This conclusion renders it unnecessary to consider the remaining assignments. Whether well taken or not they cannot affect the result. Judgment affirmed.