Hiestand v. Williamson, No. 376

No. 376 | Pennsylvania Court of Common Pleas, Northampton County | Oct 7, 1889

Opinion,

Mr. Justice Clark :

The deed of Henry Hiestand to Daniel Hiestand was dated April 9,1879, and, for anything that is shown, was on that day delivered. The judgment of David Schmoyer against Henry Hiestand was not entered until October 29, 1883, which was four years, six months and more, after Henry Hiestand had parted with his title. If the sale and conveyance were in good faith, the judgment was not a lien upon the lands in question. If the transaction was fraudulent, the sale would seem to be a means of vesting in the purchaser the right which the creditors had to avoid the conveyance; it would not affect prior liens except such as were entered after the date of the fraudulent deed. In this instance, if we leave out of view altogether the effect of the deed of November 6, 1883, the sheriff’s sale on the execution of Schmoyer discharged the Kroch and'Schmoyer judgments. These judgments were liens upon such interest only as Henry had in the land for his creditors, after he had delivered his deed to Daniel Hiestand. If that conveyance was bona fide, he had no title whatever, remaining; if not, his creditors affected by the fraud had a right to resort in this form to the land for payment of their debt. The title conveyed by the sale was conditioned, therefore, upon the existence of fraud, and such a sale would not discharge the liens against the absolute title.

As this Court said in Fisher’s App., 33 Pa. 294" court="Pa." date_filed="1859-07-01" href="https://app.midpage.ai/document/fishers-appeal-6230890?utm_source=webapp" opinion_id="6230890">33 Pa. 294, one set of creditors cannot raise a clamor of fraud which would discharge the liens of others against the absolute and indefeasible estate. To this effect, also, are Byrod’s App., 31 Pa. 241" court="Pa." date_filed="1858-07-01" href="https://app.midpage.ai/document/byrods-appeal-6230640?utm_source=webapp" opinion_id="6230640">31 Pa. 241, and Hoffman’s App., 44 Pa. 95" court="Pa." date_filed="1862-11-13" href="https://app.midpage.ai/document/hoffmans-appeal-6231913?utm_source=webapp" opinion_id="6231913">44 Pa. 95. It is clear, then, if the case rested here, that the plaintiffs would be entitled to revive this judgment, as not only the'deed of April 9, 1879, but also the sheriff’s deed of 18th of February, 1884, was subject to the lien of the plaintiffs’ judgment.

But it is said that on November 6,1883, Daniel Hiestand re-conveyed the land to his father, Henry Hiestand, and, although the deed was not recorded, the subsequent levy and sale on the Schmoyer judgment passed the absolute estate to Daniel, freed and discharged of this lien, and subject only to the lieiis created by the will of Abraham Hiestand, deceased, and the Fox mortgage. However this might have been, under ordinary eircumstanees, it does not lie in the mouth of Daniel Hiestand, the terre tenant in this ease, to say so. He attended the sheriff’s sale in person and gave explicit and clear notice that his father, Henry Hiestand, had no interest in the property, but that he, Daniel Hiestand, was the owner thereof, by virtue of the deed of April 9, 1879. This was a wilful and deliberate falsehood, for he could not have been ignorant of the fact, that only three months before he had delivered a deed to his father reconveying the absolute estate. An act so deliberate could not, in so short a time, have escaped his memory. The notice was calculated to deceive, and was, doubtless, so intended. That the plaintiffs acted upon it is plain, for that fact is set out in the affidavit of claim as the ground of their recovery. The theory of their case was and is that, under the rule of the case cited, they had “ a lien against an entirely different title of the defendant in said real estate from that on which it was sold by the said sheriff, an.d that their lien was not divested or discharged by the sheriff’s sale. ” The notice at the sale is wholly inconsistent with the evidence he now proposes to give, and as the plaintiffs appear to have acted upon the notice, he will not now be allowed to set up the deed to their injury; having deliberately asserted a falsehood to their injury, he will not now be heard to assert the truth. If it be true that the judgment was entered in a sum too large, that is the fault of the affiants. They should have set out in their affidavits, with a reasonable degree of particularity, how and when the payments were made. If any injustice has been done in this respect, they may, perhaps, have relief in another form.

The judgment is affirmed.