Greenhoe v. Jacob College

[137] Opinion, Mr. Justice McCollum : In the written demand for the surrender of the property, it was stated that at the time of the sale of it on process against Jacob Greenhoe the appellees were notified that the appellants were the owners of it. Now the appellants contend that they did not know of the sale of the property until after the appellees purchased it. Three of the four specifications of error filed by the appellants are founded on their alleged want of knowledge of the sale in time to protect purchasers by notice of their title. The court below was of opinion, and so charged the jury, that if the appellants knew of the seizure of the property, and employed Cessna to represent them in the attachment and interpleader proceedings, they were chargeable with the knowledge he acquired in the course of his employment. The appellants, whilst conceding the correctness of this instruction as an abstract legal proposition, contend that there was not sufficient evidence in the case to authorize it. They admit they have not printed all the evidence, but they claim that they have printed all of it that is applicable to their specifications. This claim is denied by the appellees, who insist that material testimony affecting questions raised by the specifications has been omitted. A dispute is thus presented which we have no means of solving satisfactorily, and which we are not in the present state of this record required to decide. We are certainly not bound to accept the disputed assertion of the appellants that the extracts which they have printed from the testimony contain all that is pertinent to the questions under consideration. It is presumed on error that no fact was submitted to the jury without evidence to sustain it, unless the contrary be clearly shown: Gifford v. Gifford, 27 Pa. 202. Where a writ of error is taken upon a judgment on a verdict, the paper-book of plaintiff in error should contain the whole of the evidence, properly certified; and where it contains only disputed and uncertified extracts from the testimony, the judgment will be affirmed: Oakland Ry. Co. v. Thomas, 1 Penny. 435. When, therefore, all the specifications are grounded on the alleged sufficiency or insufficiency of the testimony, to carry the case, or certain questions included in it, to the jury, the appellant should print all the evidence, duly certified, or in lieu thereof extracts from it which the parties mutually agree contain all that is pertinent to the issues in error. [138] We might affirm the judgment in this case on the ground that the appellants have failed to comply with this reasonable and necessary rule, but we have examined and considered the evidence they have printed, and we think it justified the court in referring to the jury the questions included in the specifications. It shows that the appellants knew that the property was seized by the creditors of Jacob Greenhoe; that they were in correspondence with counsel concerning it before notice to the sheriff that the Geiser Manufacturing Co. claimed the property ; and that the notice was probably the result of the correspondence, because it promptly followed it, and was given by counsel who represented both them and the company in the effort to defeat the attaching creditors. On this notice the sheriff applied for and obtained a rule on the claimant to inter-plead, and on the twelfth of February, 1885, the company withdrew its claim to the property, and it was ordered that the attaching creditors, who had in the meantime obtained judgments, proceed to sell it. The appellants did not give any notice of their claim until nearly two years after the sale, and their principal contention now is that Mrs. Greenhoe was in utter ignorance of these proceedings, while the son and husband were familiar with them from their inception. This alleged ignorance is the rock on which they rest their claim. But it appears that she was living with her husband when the proceedings were commenced and in progress, and her son testified that in employing counsel to rescue the property from the grasp' of his father’s creditors he represented himself and his mother, and his authority to so act was not disputed by her. A jury might well accept this sworn and uncontradicted statement of the son, in the presence of his mother, as true. The appellants allowed the insolvent husband and father to receive the property directly from the manufacturer, and to go with it, as the apparent owner, into a distant county “ to make his living.” They knew the business in which he was to engage could not be prosecuted without money or credit; that he had no money; and that he must obtain credit, if at all, in the belief that he was the owner of the property in his possession. The credit was obtained, the debts were not paid, and the confiding creditors seized the property with the knowledge of the appellants, who made no claim to it, but allowed it to [139] be sold to innocent purchasers in satisfaction of honest debts contracted on the faith of it. It would seem from the conduct of the appellants that when the Geiser Manufacturing Co. withdrew its claim, they had no intention of asserting title to the property, but if they entertained a purpose to do so it was bad faith to the officer, attaching creditors, and purchasers to conceal it. Under the circumstances, it was their duty to announce their claim or abandon it. We think they are estopped by their conduct from claiming the property in dispute, and we dismiss the specifications of error. Judgment affirmed.