29 Pa. Super. 227 | Pa. Super. Ct. | 1905
Opinion by
This is an appeal by the defendant from the judgment of the. court below in an interpleader proceeding. Had the title of the plaintiff been entirely dependent upon the bill of sale to him executed byJfiailey, on February 24, 1904, it must under the evidence- “which was produced, as to the subsequent possession, have been held invalid, as against the creditors of the latterr The property consisted of a part of the furniture in a hotel and was capable of an actual delivery. And there being no evidence of a delivery of possession, actual, symbolic or constructive, under the provisions of said bill of sale, an execution creditor would have been entitled to binding instructions: Kendig v. Binkley, 10 Pa. Superior Ct. 463; Stephens v. Gifford, 137 Pa. 219; Barlow v. Fox, 203 Pa. 114; White v. Gunn, 205 Pa. 229.
The plaintiff had, however, acquired the title which had passed to H. A. Smith under a bill of sale to him executed by Bailey in August, 1903, which was executed under peculiar circumstances. Josenhans, the appellant, was the owner of the property in question, and the lessee and licensee of the hotel in which it was used, the personal property in question being a part of the furniture used in operating the hotel. He entered into an article of agreement, on August 19, 1903, with Bailey for the sale of the leasehold of the hotel, “ together with his legal license to sell liquors,” and part of the furnishing and furniture thereof, for the consideration of $5,000, and at the same time executed a bill of sale of the personal property in question, being the furniture referred to in the agreement, to Bailey; $3,500 of the purchase money was to be paid in cash, and the balance to be secured by two notes of $750 each, one payable in three months and the other in six months. Bailey could raise only $2,500 in cash, which amount he paid to the appellant, who thereupon delivered to him possession of the property, and the license to sell liquors was transferred. Josenhans remained at the hotel where the property was, waiting for the payment of the remaining $1,000, both parties making efforts to find some person willing to advance the money. There
The judgment is affirmed and the appeal dismissed at costs • of the appellant. \