Herron v. Fry

The opinion of the Court was delivered by Huston, J. The' cases of Clow v. Woods, in 5 Serg. & Rawle, 275, and of Welsh v. Bekey, executor of Hayden, 1 Penn. Rep. 57, haye gone far' to settle the law as to cases of sales, or mortgages of goods where possession is not delivered. The present is on the one side supposed to fall within these cases. Perhaps there is one marked difference — in each of those cases the possession was to remain in the mortgagor. In this it is alleged to have been at once transferred to the purchaser, and to haye been, ever after in him ; and whether this was so, was the point of the cause — for I agree entirely with those cases. It was not contended here that there was actual fraud and collusion between Fry and Hiskey, though it was contended in the Common Pleas, evidence given to prove it, and the Court expressly left this to the jury. “ If the whole was an arrangement to cover the property from the creditors of Hiskey, while it really and substantially belonged to Hiskey, it is wholly yoid ;” is the commencement of the charge. But giving up this point'in this Court, an error is charged on the Court below, that the Court left the construction of the note and agreement of the 15th of March to the jury. I do not understand the charge so, and I am satisfied it was not so intended — was not so in fact. The note alone, perhaps, would not decisively make Fry the tenant, nor discharge Hiskey from liability for the next year’s rent; but the facts, that Fry had purchased all the horses and cattle and farming utensils of Hishey at a public sale by a constable, and the agreement between him and Hiskey, that with that slock and those utensils, Hiskey Was to work the farm for the ensuing year'for Fry, and to be paid a certain price per month, as a hireling, and that Stewart, the landlord, wrote this agreement and signed it as a witness, taken in connection with the note for the rent, given by Fry to Stewart, at the same time; would and did make Fry the tenant — and after this Stewart could not treat Hiskey as tenant, or resort to him'for the rent — unless all this was done by Fry as a trustee for Hiskey, and to cover his property. On the face of the papers, and if all was fair, Fry was tenant, if not fair, Hiskey was tenant; and the possession of this grain after it was reaped and stacked on that farm was in Fry or in Hiskey, according as the transaction was bona fide, or collusive — -and whether it was the one or the •rther was-le ft to the jury. [272] The other error assigned is, that the two first points were no! answered. If the cause be fairly put to the jury on the matters of fact and of law on which it turns, no more can be asked of a judge. These propositions assumed that the possession was airways in Hiskey, and if so the law was with the defendant, and so the judge expressly charged', but he very properly went further and told them that if it were in Fry the plaintiff ought to recover. If Fry had hired, not Hiskey, but another man to work that farm for him, there would have been no doubt; the pos-' session would have been in him as much as if he had hauled the' grain to another farm of his own. Fry would then have been indisputably tenant, and the possession of the farm his possession. His-' key was sold out — poor—in debt — but it was no crime to employ him — to give him wages, and if in truth he was employed and paid by the month, Fry was as much in possession with Hiskey' as a hireling, as he would have been if another man had been employed. The fact that he was Fry’s brother-in-law might raise' suspicion — the facts that he had been tenant of that farm the year' before, and had owned the cattle and implements of husbandry, might raise suspicion — -but it is not fraud or guilt in a man who' wants a hireling, to employ a relation — it is only so when done collusively. Whether then, the possession always remained in Hiskey, ot was at once transferred to Fry, and was ever after in him, depended on whether he was really the tenant, and Hiskey really the hireling, and this was fairly left to the jury. Any question which raises on granting or refusing new trial is not subject of writ of érror. Judgment affirmed»