Appeal of Geddes, 84 Pa. 482

Appeal of Geddes

84 Pa. 482 | Pa. | 1877

Mr. Justice Sharswood

delivered the opinion of the court,

It is settled in this state as well as anything can be settled, that where lands are owned by two persons on the face of the deed of conveyance to them as tenants in common, it is incompetent whenever the fights of third persons are involved to show by parol that they were held as partnership property. It is enough for the purposes of this case to refer to Lefevre’s Appeal, 19 P. F. Smith 122 and Ebbert’s Appeal, 20 Id. 79, in which the former decisions of this court are fully considered and discussed. It is certainly not enough that the articles of co-partnership are in writing, nor that they are expressly for buying and selling real estate. Parol evidence must still be resorted to, to show that the particular land in question was a part of the partnership transactions. The principle of these cases cannot now be controverted, and indeed it has not been in this case. But the contention is that as the land has been converted into money and the fund in court is personal estate, the execution creditor by his attachment of the fund treats it as such and is not within the protection of the principle. On the 15th January 1874 the judgment of Coryell v. Schultze was revived and became a lien on whatever interest Schultze had in the land. He had in conjunction with Weis, his co-partner, sold it on the 20th day of January 1873 to the St. Mary’s Coal Company, and a large part of the purchase-money was unpaid. Schultze and Weis had an interest in the land to the extent of the unpaid purchase-money. *486It is true, as' it appears, that the legal title was still outstanding in former owners. But that circumstance does not vary the case. The revived judgment was a lien on their interest in the land as security for the purchase-money whether that interest was legal or equitable. As to the judgment creditor, the interest of Schultze upon the face of the contract of sale to the St. Mary’s Coal Company was that of a tenant in common. He had a right to consider and treat it as such. He attached the purchase-money and summoned the St. Mary’s Coal Company as garnishee. As to him, Schultze owned half the interest in the land and was entitled to half the purchase-money. How then did the attachment of it as a debt compromise his rights ? It is said that he has merely stepped into the shoes of Schultze and has no other rights than he. We will not stop to inquire whether as against Schultze the legal effect of the writing could be changed by parol evidence without evidence of fraud or of what would raise a resulting trust for the partnership. An attaching creditor has often higher rights than his debtor, as in the instance of the attachment of funds in the hands of a fraudulent assignee. The assignor cannot controvert the assignment on that' ground, but the attaching creditor may. “ It is very clear,” says the present chief justice, in Ebbert’s Appeal, supra, “ that honest creditors, who are led to give credit to the individual partners on the apparent state of the title in them individually, ought not to be met afterwards by a change of face in the deed by which it takes a partnership aspect contrary to its terms.” He had previously observed that “ to alter a deed so as to make it of different import offends against the spirit of all those laws made to protect the public against fraud and secret titles and prevent a change of right to the prejudice of those who deal upon the apparent legal operation of the instrument. The covinous character of the change in the title in such case is of a kind with that forbidden by the statutes of 15 and 27 Elizabeth, and the statute against frauds and perjuries.” Now the agreement of 20th January 1873, by Weis and Schultze for the sale of the land in question to the St. Mary’s Coal Company, was in their individual names, without any reference to their acting as a partnership or anything to show that they held their interest in the-lands as partners, and the surviving partner cannot be allowed to change that condition by parol evidence so as to affect the rights of any creditors who on the faith of it have obtained a lien either upon that interest itself or upon the proceeds of it in money.

Decree reversed, and it is now ordered and decreed that the fund in court, less the costs in the court below and this court, be paid to Sarah S. Geddes, executrix of the last will and testament of Henry Sproul, deceased.