Tisch v. Utz

Opinion, Mr. Chief Justice Paxson: This was a feigned issue, under the sheriff’s interpleader act. The appellant claimed title under a sheriff’s sale. It appears that the appellant’s testator, George Schrank, held a judgment against one Fritz Raisch, upon which he issued an execution, levied upon the personal property of Raisch, and at the sale thereof became the purchaser. This gave him a good title to the property, in the absence of fraud. It is proper to mention that, some time before Schrank issued his execution, he had taken a bill of sale from Raisch, for the same property levied upon, and allowed the latter to remain in possession. Afterwards certain creditors of Raisch issued attachments against him, upon which the property was seized. Schrank, claiming it under his bill of sale, brought trespass against the plaintiffs in the attachments and the officer who served them, and also sued out a writ of replevin. Finally he issued his fieri facias, as before stated, levied on the property subject to the writs of attachment, and became the purchaser at the sheriff’s sale. The effect of this sale was to free the property from the lien of the attachments ; the purchaser took a good title, and the lien of the attachments was transferred from the property to the fund. These facts are mentioned, not as having any special importance in the case, but for the [196] reason that they appear to have led to some confusion upon the trial in the court below. The most that can be made of the bill of sale, the suit for trespass and the replevin, is that the whole was a clumsy device of an ignorant man to secure himself against loss, assuming him to have been a bona-fide creditor of Raisch. Subsequently, the attaching creditors obtained judgments, and proceeded to levy upon the same property which the sheriff had previously sold to Schrank. This feigned issue was then framed to try the question of the ownership of the said property. As before observed, the sheriff’s sale gave Schrank a good title, in the absence of fraud. If the judgment upon which his execution issued was bona fide, and for an honest debt, his title was good against the world. It follows that the only question properly before the court below was the validity of that judgment. The first assignment alleges that the court erred in admitting the testimony- of a number of witnesses taken in another suit, to which Schrank was not a party, to be read in evidence. Among those witnesses was Schrank himself, and his testimony was offered for the purpose of contradiction. So far as it tended to contradict his evidence given in the present proceeding, it was competent. The mere declarations of a party to a suit, made out of court, may be used to contradict his testimony in court, provided the proper ground be laid for their introduction. I am somewhat at a loss to know whether the testimony of John Utz, and the other witnesses referred to in this assignment, was admitted and read to the jury. The paper-book is not clear upon this point. If admitted, it was error, for the reason that it was taken in another proceeding, to which the appellant was not a party and where the issue was entirely different. Moreover, much of the testimony was irrelevant, even if otherwise admissible. As the case must be reversed upon other grounds, these suggestions are made for the guidance of the court below upon another trial. We think it was error to admit the bill of sale referred to in the second assignment. It had no bearing upon the validity of the judgment. We are dealing with an allegation of actual fraud, and a bill of sale is only evidence of a constructive fraud when not accompanied with the possession of the pro [197] perty. It is good between the parties, yet, when taken in the most perfect good faith and based upon the fullest consideration, the law declares it a fraud against creditors when there is no corresponding change of possession. It is, however, a constructive fraud only, and is not of itself evidence of actual fraud. Assuming that the bill of sale was a badge of actual fraud, the learned judge fell into error in that portion of his charge embraced in the third assignment. It is as follows: “ The defendants allege fraud, and to establish it they call your attention to several different facts and circumstances; first, to what is called the bill of sale, whieh purports to have transferred the title of this personal property from Frederick Raiseh to George Schrank on July 2, 1886. That paper has been read in your hearing. It is supposed to be a bill of sale. As such, its effect would be to transfer the title to this personal property from the vendor to the vendee. Your attention is also called to the fact that notwithstanding this bill of sale Raiseh never surrendered possession of the property, but remained apparently its owner; that as such he went on with the business of butchering at the old stand; that he contracted debts for cattle in the line of his business, and sold to customers in the ordinary way; that there was no change of the sign over the door of his shop, as I understand it, or of the name and advertisement painted on the wagon by which the meat was peddled on the streets of the town.” All this was irrelevant to the issue before the court, and the evidence of which it was predicated had no proper place in the cause. It related to matters which occurred prior to the sheriff’s sale, which sale, as before observed, passed a good title to Schrank, in the absence of fraud ; and that fraud, if it exists, must be found in the judgment, not in the clumsy and abortive attempt to hold the property by virtue of a bill of sale. Had Schrank claimed title by virtue of this bill of sale, it would have been a case of constructive fraud, and the charge of the learned judge would have been correct. But his title had been perfected by a judicial sale, and the case has resolved itself into a question of actual fraud. We cannot say that this ruling did the plaintiff no harm. On the contrary, it was vital, and took the heart out of his [198] case. Indeed, but for this, I do not see how the jury could have found for the defendants, as the integrity of the judgment was not assailed by a single witness, so far as I have observed, and I have read the testimony with some care. The testimony of both Schrank and Raisch, the parties to the judgment, fully sustains its consideration. The most that can be urged against it are some trifling contradictions in their testimony. Neither witness was- impeached, or seriously contradicted. We think it was error to call the attention of the jury to certain declarations of Raisch, made to various parties, as to his financial condition. That a defendant in a judgment cannot destroy it by his mere declarations is settled law. The latest case upon this subject is Unangst v. Goodyear Co., 141 Pa. 127, decided at the present term. The holder of a judgment would have a very precarious security, if his debtor could destroy it by his mere loose declarations. Aside from this, Raisch was not a party to this proceeding and was a competent witness. His declarations were not competent. The plaintiff has no reason to complain of the rejection of the-testimony of Valentine Wich. He was offered to prove the declarations of the plaintiff himself, and of Raisch. If such testimony were competent, the parties to a suit could manufacture evidence without limit. This does not require discussion. The judgment is reversed, and a venire facias de novo awarded.