173 Pa. 428 | Pa. | 1896
Opinion by
John L. Bogert, a citizen of New York, was a debtor, by judgment, of Caulfield, a citizen of Pennsylvania, plaintiff, in sum of $248. On this debt the plaintiff issued a writ of foreign attachment and levied it on a turret engine lath machine in the possession of Moore & White, of Philadelphia, averring the machine to be the property of Bogert. The machine was claimed by Yan Brunt, this defendant, who was permitted to interplead.
On these facts, of which there was evidence, the learned judge of the court fielow peremptorily directed a verdict for plaintiff; no charge or opinion is filed.
It was argued, not without reason, that no collusion between Bogert and Van Brunt, or intention on part of either to defraud creditors, was proven; therefore, we assume that under the authority of Clow v. Woods, 5 S. & R. 275, and the long line of cases which follow it, the court was of opinion the transaction was constructively fraudulent as to creditors. But was it ? From the evidence the jury could have found the transaction between Bogert and Van Brunt was not tainted by actual fraud. True, the mortgage had not been recorded, and was not valid as against New York creditors for that reason ; but it was good as between the parties, and as between them the legal title to the machine was in Van Brunt. With the presumed consent of the latter the machine is placed in the possession of Moore and White on an optional sale. By arrangement between Bogert and Van Brunt there is an equitable assignment of the purchase money to the latter, of which Moore & White had notice. If believed, this clearly carried with it to Van Brunt the right to possession of the machine when Moore & White declined to consummate the purchase. The actual possession of the machine ceased to be in Bogert when he put it in possession of Moore & White ; the right to the possession, when they refused to keep it, had passed to Van Brunt by the assignment of the purchase money and notice of the assignment to Moore- & White; there was no longer a right in Bogert to demand possession as against his assignee, Van Brunt. It is not important that under the optional sale the payment was not of a thing in esse; the machine itself was existent; one or the other passed to Van Brunt, defendant, on the contingency of acceptance by Moore & White. Equity will support assignments of contingent and expected payments, where the agreements are fairly entered into, and it would not be against public policy to
As between Bogert and his creditors his actual continued possession of the machine under an unrecorded mortgage would have been constructively fraudulent, but when he transferred the actual possession to Moore & White, and then by the assignment to Van Brunt relinquished the right to reclaim possession, and Van Brunt asserted his right by notice to Moore & White, the elements of constructive fraud under the statute of 13th Elizabeth are absent. Moore & White then were mere bailees of Van Brunt if the facts be established as defendant avers them. If in their possession as bailees, the machine was not subject to seizure at the suit of Bogert’s creditors. This is the decision in Linton v. Butz, 7 Pa. 89, where it is held that if the chattel sold be in the actual possession of the bailee of the debtor, and the vendor does not retake possession, the sale is good as against creditors.
In determining the questions involved in a transaction of this nature, where the actual possession of the personal goods is not in the debtor at the time of the seizure by the creditor, much depends on the intent or good faith of the parties. Clow v. Woods, supra, is based on the apparent want of change in the situation after the sale or transfer; that must not seem to be which is not; the retention of possession by the debtor of that which he has sold misleads his creditors, and therefore is constructively fraudulent as to creditors. But where the chattel is in the actual physical possession of another than the debtor at the time of transfer no creditor can be misled to his hurt.
We think the case was one for the jury. It was for them to find from the evidence, whether the transaction between Bogert and Van Brunt was collusive and fraudulent as to creditors. If it was not, there was no such possession or right of possession in Bogert as renders it constructively fraudulent as to this plaintiff.
The judgment is reversed and a v. f. d. n. awarded.