Posten v. Posten

[42] The opinion of the Court was delivered by Sergeant, J. — The rule laid down by the Court below in relation to voluntary settlements by persons indebted at the time, is that which has uniformly obtained in Pennsylvania, as well as in some other states of the Union, and is not without countenance in later times, even from the. English Courts of common law. The strict doctrine of the English Court of Chancery, adopted in New York and several other states, that if a person be indebted at the time, a voluntary settlement is fraudulent and void against existing creditors, unless their debts be first paid or secured by mortgage, has proved too severe to be generally received. See the note to 2 Kent's Comm. 442, last edition, where the doctrine is examined and the cases are referred to. The point has, however, too often been settled here to admit of contest now, even supposing, which I am not inclined to admit, that the strict rule is as well adapted to the situation and policy of our country. In Blair M'Clenachan’s Case, (2 Yeates, 503,) Smith, J. says, a man must have an ample estate at the time he makes voluntary conveyances of a large part of it to his children: so that if he be in debt at the time, his creditors may not thereby, in the common course of dealing, have the security of their debts rendered precarious. In Mateer v. Hissim, (3 Penn. Rep. 164,) it is said by Huston, J., in delivering the opinion of the Court, that the st. 13 Eliz. c. 5, does not render void a conveyance made by a man, simply because he is indebted. There must be a debt bearing some proportion to the property retained, which may render its payment doubtful. In Chambers v. Spencer, (5 Watts, 410,) the point again arose, and it was held, that the mere circumstance of a father being indebted at the time he made a voluntary conveyance to a child, did not render such conveyance fraudulent and void under the stat. 13 Eliz., if he had other property at the time 'sufficient beyond a doubt to pay his debts. This was the doctrine laid down by the Court below in their charge to the jury in the present case, and is in our opinion the established law ih this state in relation to voluntary settlements by persons indebted. Another error assigned is, that the Court below allowed the plaintiff to go into evidence that no debt from the father to James Posten existed when the settlement took place between them on the 27th January, 1829, on which judgment was confessed of the 26th March, 1832. The defendant insists that this judgment is conclusive evidence of the debt, for which it was rendered; but if this be so, the plaintiff’s land might be sold under a judgment confessed subsequently to his deed for a debt alleged to be prior, although he could prove that the debt was feigned, and the judgment covinous and fraudulent as to him. This is certainly not the rule of law, nor of justice. If a judgment between other persons be given in evidence to affect the rights of a third person, neither'party nor privy to the [43] judgment, he may show that it was set on foot by covin, and thus avoid it. The plaintiff here was neither party nor privy in respect of land which he held by a previous deed from the father. The defendant on the trial gave in evidence, that on the 20th January, 1832, a motion was made to open the judgment No. 73 of January Term, 1829, James Posten v. Jacob Posten, for $3,311 62, with interest, and let the defendant’s heirs into a defence, on which, on the 24th March, 1832, the counsel for the heirs entered a rule to take depositions, which rule was discharged on the 14th of December, 1832. The plaintiff subsequently offered William Brown to prove by whom the application to open the judgment was made, and that the plaintiff had nothing to do with it; and his admission is now assigned for error. It is contended, that as William Posten was one of the sons and heirs of Jacob Posten, this rule and the decision of the Court upon it, estop him from showing that he was not in anywise participator in the proceeding. Supposing that it might estop him as heir, yet he stood at the time, and now claims, not as heir, but as alienee, by a deed prior to the judgment, and this right he would not be precluded from asserting by a proceeding conducted in another capacity. The heirs might have objections to the judgment, because it would affect the assets coming to them, and they might on that ground alone move to set aside the judgment altogether; but the plaintiff as alienee was not interested in setting the judgment altogether aside ; it might remain in force between the parties and their representatives, and yet as to his land be covinous and ineffectual. It is not easy to see what influence this proceeding could properly have in the present ejectment, unless as an argument that an application to set aside the judgment having failed, the plaintiff’s present allegations and evidence against it, possessed, less weight with the jury than they otherwise would have had. But whether that or any other inference could be drawn from the proceeding, the plaintiff had a right to rebut it, by showing it was at the instance of other heirs, and that he was not concerned in it. The defendant, on the trial, also gave in evidence, that on the 21st January, 1833, the plaintiff, William Posten, obtained a rule to show cause why the writ of venditioni éocponas on which the sheriff sold the tract in. dispute, should not be set aside, and the levy made on the fieri facias on the property claimed by William Posten, which rule was afterwards discharged. The defendant contended that this proceeding made William Posten a party or privy, so as to make the judgment conclusive on him. .This position appears to me to be entirely misconceived, and that on the contrary the plaintiff, in his character of alienee, had merely mistaken his remedy, in applying to the Court to set aside the venditioni and levy. He could not in this way have the question of title to the land in dispute determined, and it is the constant practice of the Court to refuse to [44] entertain a motion of this kind by one who is not a party or privy to the judgment, but a third person claiming by title paramount to the judgment and execution, and to leave the parties to their ejectment. This was decided in Glascock’s Adm. v. Wilson’s Adm. (2 Wash. C. C.R. 59,) where there was a rule to show cause why the levy and sale of land on venditioni exponas should not be set aside. The parties applying to the Court connected themselves with the proceedings only by showing title to the land, and that it was better than that of the defendant in the execution. “But,” said Washington, J., “ is this an inquiry proper for the Court to enter upon under the rule ? Is it competent to this Court to decide such a question ? We think not. In cases like the present, or where they are complicated, and particularly if there be contradictory evidence, we should think it most proper to leave the parties to contest their rights in a more regular course of proceeding on the law or equity side of the Court.” It must be presumed, therefore, that the Court, in discharging this rule in the case before us, did so because the application was irregular, and they could not legally entertain it; and that so far from deciding any thing which bound the plaintiff, they expressly refused to hear the matter. It would therefore be extremely unjust to give it an operation against the plaintiff’s claim in this ejectment. It is further alleged, that the Court erred in directing the jury to calculate from parol evidence in the case the value of the grantor’s property, whereas the actual .sale by process of law was the best evidence of the value, and conclusive. In this, however, we think the Court were right. It is the value of the remaining property at the time of the conveyance which is in question, and of this, a sheriff’s sale some five or six years afterwards is, as the Court below stated, evidence, and strong evidence, of its value at the time of the deed and time of sale. It is obvious, however, that it is not conclusive, because the value may have materially changed in the mean time, from the fluctuations of the currency, and other circumstances, as well as because sheriff’s sales are often below the market value. The price bid at the sheriff’s sale therefore ought to be open to explanation. The record of the suit by James Posten against Conarroe & Dickerson, was offered by the plaintiff to show that the defendant had dealt with the property on the farm as his own, and that he employed the team in hauling ship-timber for Conarroe & Dickerson, for the price of which he brought suit against them.. For this purpose the record was a link in the chain of evidence, going to show the acts and conduct of James Posten in managing the farm on his own account, and is the best evidence to show a demand in that capacity against one for whom he worked. Judgment affirmed.