63 Pa. 108 | Pa. | 1870
The opinion of the court was delivered, January 3d 1870, by
The numerous assignments of error to the charge and answers of the court to points, will be resolved by the- disposi
Elijah Heath had lent money to John H. Page, at usurious interest. The deed from John H. Page to Elijah Heath, for property accepted by Heath in payment of the debt, and hy which the usury was consummated, bears date December 13th 1861, and was acknowledged December 31st 1861. In Heath v. Page, 12 Wright 145, it was held, however, that the usury was not complete until the 14th day of April 1862, when satisfaction was entered on the mortgage given to secure the debt. On the 2d of July 1862, Page sued Heath for the excess of interest paid him, and recovered judgment June 27th 1864. The declaration was in indebitatus assumpsit, and laid the time when the debt accrued for the excess of interest as of the 1st of February 1862. Elijah Heath conveyed the property from which the money attached in the hands of John Heath arose, to Charles Gaskill, by deed dated 29th of April 1862, reciting a consideration of $7000. Gaskill and wife conveyed the same property to John Heath, the garnishee, by deed dated May 26th 1862, reciting a consideration of $8000. It is conceded that both these deeds were purely voluntary, no money being paid by either grantee. John Heath sold and conveyed the property to Gibson A. Mundorf, a boná fide purchaser, without notice of any fraud, by deed dated December 26th 1864, for the sum of $14,750 paid in full to Heath. This is the money attached in the hands of John Heath. Then, whether we take the date of Page’s deed to Elijah Heath, in payment of his mortgage, the date laid in the declaration in the suit for the excess of interest, or the date of. the satisfaction of the mortgage of Page to Heath, the usury was complete before the 29th of April 1862, the date of E. Heath’s deed to Gaskill, and Page’s right to recover the excess had already vested. Page, therefore, was an existing creditor to be affected by Heath’s deed to Gaskill, unless his claim for the excess of interest is not a debt, and he not a creditor, within the protection of the statute of 13 Elizabeth. This then is the first question.
For one hundred and thirty-five years the legislation of the state, on the subject of interest, viewed usury as a crime, and denounced upon it, a forfeiture of the money lent, as its punishment. That which was recoverable under the Act of 1723, for usury, was a penalty, half of which went to the government, and half to any informer who should sue for it. But with the changes wrought in the commerce, and in the ideas of the people, came a change in their legislation; and in 1858 the lawful rate of interest in all cases where no express contract should be made at a less rate, was established at six per centum per annum. When a greater rate is bargained for, no penalty is exacted, but_ the bor
But independently of this reasoning, on authority the claim falls within the letter and spirit of the statute of 13 Elizabeth. The statute makes “utterly void, frustrate, and of none effect,” all conveyances and other recited instruments and acts, “ as against that person or persons, his or their heirs, successors, executors, administrators and assigns, and every of them, whose actions, suits, debts, accounts, damages, penalties, forfeitures, heriots, mortuaries and reliefs, by such guileful, covinous, or fraudulent devices and practices, as is aforesaid, are, shall or might be in any way disturbed, hindered, delayed or defrauded:” Boberts’ Digest 296. It was, therefore, said in Twyne’s Case, 1 Smith’s Lead. Cases, p. 5, “ that this act doth not extend only to creditors, but to all who had cause of action, suit, or penalty, forfeiture, fe.” “And it was resolved that this word forfeiture should not be intended only of a forfeiture of an obligation, recognisance or such like (as it was objected that it should, in respect that it comes after damage and penalties), but also to everything which shall by law be forfeit to the king or subject.” This would include the penalties under the Usury Act of 1723. In Shontz v. Brown, 3 Casey 131, Woodward, J., said, that the question is not to be answered by a sharp definition of the word “creditors,” as the statute avoids conveyances made to defraud creditors and others. He remarked, also, that the statute extends to contingent liabili
Now as we have seen that Page’s right of action arose not later than the 14th of April 1862, and before Heath’s deed to Gaskill of the 29th of April 1862, he stood protected by the statute of 13 Elizabeth. This relieves the case of numerous assignments of error and authorities.
We come now to the second principal question in the cause, to wit, the nature and attachable character of the money in the hands of John Heath. It is urged that the property having come to him through Charles Gaskill as land, and the money being the proceeds of his own sale to Mundorf, the fund is not a debt due to Elijah Heath, and is not attachable. In solving this question it is to be noticed first, that the judgment of Page v. Heath entered on the 27th of June Í864, was not a lien (aside from the fraud) on the land conveyed by Heath to Gaskill, in April 1862. The land, therefore, can be followed only on the ground of fraud in the conveyance. It is to be observed, in the second place, that the land itself cannot be reached at all, it having passed into the hands of Mundorf, a bond, fide purchaser for value, without notice of the fraud, on the 26th of December 1864. The fi. fa. levied in October 1864, was not against John Heath, and therefore did not lie in the path of Mundorf in tracing the title of John Heath; for when he would arrive at the deed from Elijah Heath to Gaskill he would find it prior to the judgment of Page, and therefore, unless he had notice of the fraud, he would be bound to look no farther than the judgment. As the case stood at the service of the attachment, John Heath held the proceeds of the sale to Mundorf, which alone can represent the title that Elijah Heath had in the premises; and if, by reason of the fraudulent conveyance, and the subsequent conversion of the land into money, by a sale to a boná fide purchaser, the money cannot be followed, the creditors of Elijah Heath are baulked by the fraud, and the statute of 13 Elizabeth rendered abortive. But this is a consequence not to be tolerated, while the only fund representing Elijah’s interest remains in the hands of a mere volunteer who has paid no consideration; and this we rule on both principle and authority. The objection that there is no privity between Elijah and John Heath, to constitute the relation of creditor and debtor, is answered by the reasoning of Chief Justice Gibson, in Englebert v. Blanjot, 2 Wharton 245; “What then,” says he, “is the interest of a debtor in property fraudulently conveyed by him ? As regards benefit to himself, absolutely nothing; but as regards benefit to those attempted to be defrauded, something tangible and substantial. Eor the benefit of these the ownership remains in him as a trustee ex maleficio. On no other principle could the legal title be sold, even on judicial process against him; yet it is
The errors assigned to those portions of the charge which relate to the proportion of the property retained by Elijah Heath, when he conveyed the property in question to Charles Gaskill, are of but little importance, as this was, according to the testimony, a case of positive fraud. But we may say in reference to these errors, that the statute of 13 Elizabeth embraces all cases where the effect of a voluntary conveyance is to hinder and delay, as well as to defraud creditors. Hence, where a debtor denudes
The prior levy, which was necessarily abandoned by reason of John Heath’s sale to a bond fide purchaser for value, was not in the way of the execution attachment. It is only when the execution or other final process is inconsistent with the attachment, that the latter becomes irregular: Tams v. Wardle, 5 W. & S. 222; Coleman v. Mansfield, 1 Miles 56; Newlin v. Scott, 2 Casey 102; Kase v. Kase, 10 Casey 128; Pontius v. Nesbit, 4 Wright 309.
There was no error in receiving the deed made by Elijah Heath
It was error to receive the certificate of the clerk of the Circuit Court, and copy of the docket entries in the case of the United States v. Hastings and his sureties. But it did the defendant no injury. The paper showed nothing but a suit brought, the plea, rules for taking depositions, and the continuances, while the important and operative facts of Elijah Heath’s indebtedness to the United States, his expectation of being sued, and his purpose in conveying his property to Gaskill, to prevent the collection of the debt by the United States, are all proved by the testimony of Gaskill, the witness of both parties. The error, therefore, in admitting the paper was immaterial.
The only ground, alleged in the bill of exception, against the admission of those parts of Charles Gaskill’s deposition, read by the plaintiff, was that the declarations proved, were made in the absence of John Heath. But all these portions had relation to the declarations of Elijah Heath to Gaskill, before and at the time of the fraudulent arrangement to transfer his property, to defeat the collection of the claim of the United States. Such declarations are a part of the res gestee, and are not to be likened to declarations made by a grantor after he has parted with his title, to the prejudice of his grantee. There was no error therefore in admitting these declarations: Covanhovan v. Hart, supra.
The true value of the land was a circumstance bearing on the question of fraud: Hamet v. Dundas, 4 Barr 178. Finding no error in the record the judgment is affirmed.