Henry & Co. v. Patterson
57 Pa. 346
Pa.
1868
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The opinion of the court was delivered, by

Agnew, J.

The true question in this case is, whether the rejection of the evidence offered by the defendants did them any substantial injustice. It did not, unless it would have divested the title of Patterson to the machinery under his purchase at sheriff’s sale, or would have avoided it as against the execution of a creditor who was a party to the paper stated in the offer. We do not perceive that this would have been its effect. Patterson had a valid and regular judgment and execution against Hughes, upon which he levied and sold the interest of Hughes, whatever it was, in the machinery in question. Hughes interposed no objection, and the sale was regularly made by the sheriff under the writ. As between Hughes and Patterson it cannot be pretended that title did not pass. No consideration moved from him to Patterson to stay proceedings, and he made no application to the court to arrest the sale or set aside the execution. Patterson therefore acquired Hughes’ title, unless the sale on his writ was a fraud on the rights of the creditors signing the paper, or he is estopped by it from setting up his title against the execution of Henry' & Co.

What, then, was the effect' of the paper stated in the rejected offer on the title of Patterson ? The paper was made upon no consideration moving from Hughes, and imported none by reason of a seal. It is admitted it was not signed by all the creditors, and it may be conceded, though not stated in the offer, that the offer would have been followed by proof of an understanding among the creditors that each one signing was to be considered bound by the paper on its being signed by a specified number. The paper was a simple agreement for forbearance for one year. As between Hughes and the creditors it was not binding, there being no consideration. He could maintain no action upon it, nor make it a valid promise to enable him to stay an execution: Johnston v. Thompson, 4 Watts 446; Zeibert v. Grew, 6 Whart. 404; United States v. Simpson, 3 Penna. R. 437; Rhoads v. Frederick, 8 Watts 448; Bieber v. Beck, 6 Barr 198. It has been likened to a composition deed. But it has no such resemblance. In all compositions the creditors are moved by some advantage to be obtained in a distribution of property or money by the debtor, or by fixed payments to be made by him securing to each a certain proportion of his assets. But this paper conferred no advantage upon them, and was wholly for the advantage of the debtor, leaving them at the end of the period of forbearance just where its beginning found them. The utmost that can be said of the paper as between the creditors is, that it implied mutuality of forbearance among them, and therefore that one could obtain no advantage over another by its breach. Whether the mutuality said to be so implied by the common agreement to forbear might give a right of action by those who do forbear against those who do not, *351or whether the fruits of execution shall be held in trust by those who do not forbear for those who do, are questions we do not now undertake to solve; but that now before us is whether the breach of Patterson’s agreement to forbear prevented title from passing under the sale upon his execution, or estops him from setting it up. The sale was made under a valid and regular judgment and execution for an honest debt. It was not made to hinder and delay other creditors, but to collect the debt due to himself. Now, clearly the sale thus made passed all of Hughes’s title to the property, unless the agreement between the creditors vested in them some title or interest in the property in law or equity. But clearly it was not the purpose of the agreement to vest in the creditors any interest in or claim to the property whatever. It left the title of Hughes where it was, and its utmost effect was to bind the creditor from touching it for the period of forbearance. But a breach of the agreement did not invalidate the writ and sale which were permitted to run their course to a final completion! The creditors lost no estate or interest in the property by the sale, but each lost only the bare possibility of having the first execution in the hand of the sheriff at the end of the time of "forbearance. If they had any interest it is plain it must have been one that was joint or common to all, and to no one exclusively; and yet all that has been claimed as their right is a scramble for the first levy at the end of' the year, while as to that non constat that Patterson might not have been foremost in the race. Henry & Co. now claim to be foremost, and therefore to have a right to sell the property a second time for their individual benefit. But if the agrément was binding among the creditors, what right have Henry & Co. to its exclusive benefit? If binding, a right of action arose to all the creditors alike when Patterson broke it, or to claim from him their proportions of the sum realized by the sale. The breach and the sale preceded the execution of Henry & Co., and the rights of the creditors must have then vested in equity. It is difficult, therefore, to see how Henry & Co. can make a resale of the property for their own benefit. This settles the question, for the controversy here is between the execution of Henry & Co. and that of Patterson, which had been finally executed by a sale of Hughes’ interest before Henry & Co. had intervened. The title to the property therefore passed by the sale into Patterson; whether for himself, or for himself and others, is not now material.

In view of the evidence, it was not error to refuse the defendant’s point. The proof showed that Hughes was but a bailee of the machinery in the Globe Mills under an agreement for a purchase when he should pay the purchase-money. According to the testimony of Dickens, the former owner, he never parted with his title, and made no conditional sale, but merely leased or bailed *352the machinery to Hughes for use, agreeing to sell only on receipt of the purchase-money. According to Rowe v. Sharp, 1 P. F. Smith 26, and the authorities there cited, this was but a bailment which vested no title in Hughes that could be levied and sold to the prejudice of Dickens’s title. Patterson, by his purchase of Dickens, became the owner of the machinery. Hughes in fact had no title but a bare possession by bailment with a right to acquire title only on payment of the balance of the price to be paid. Had Patterson actually levied upon and sold the machinery, he would have endangered his own title to it. He Avas justified therefore in making his levy upon the mere claim of Hughes selling it as such. The sheriff could not seize the property or transfer the possession without the consent of Patterson. There is no complaint that the property was not duly advertised, or that it Avas sold privately so as to prevent competition. The only interest the other creditors of Hughes could have was in the notoriety and fairness of the sheriff’s sale, in order that Hughes’s interest should bring a full price. This has not been attacked. If properly advertised, the machinery could be inspected as well as real estate Ayhich is often sold by sheriffs, trustees and others making judicial sales, at some public place rather than upon the premises. We cannot say therefore that the sale was void by reason of its being made at the sheriff’s office.

Upon the whole, Ave perceive no error, and the judgment is affirmed.