233 Pa. 561 | Pa. | 1912
Opinion by
This is a feigned issue under the sheriff’s interpleader act to determine the title to certain personal property
For fifteen or twenty years prior to 1910 N. C. Hunter had been a contractor engaged in constructing railroads and highways in the county of Washington, this state. In August and September, 1908, he borrowed money from the Cosmopolitan National Bank of Pittsburg, and in July, 1910, Robert Lyons, the appellant, who had been appointed its receiver, instituted suit to collect the indebtedness due by Hunter from 1908, and, having obtained a judgment against him, issued an execution, by virtue of which the sheriff of Washington county seized a steam roller, stone crusher, dump wagons, etc., constituting an equipment then being used by Hunter in the construction of a highway near Eighty-four, in said county. About November 17, 1909, there was organized under the laws of the state of New York a corporation known as the Hunter Construction Company, and on the twenty-fourth of that month Hunter, according to his testimony as a witness for the plaintiff, executed and delivered to that corporation a bill of sale of all his road-making equipment, including the property in controversy, for which there was issued to him the entire capital stock of the corporation. At the same time he assigned to it a number of contracts, not including, however, the one for the construction of the road near Eighty-four, on which the machinery levied upon was being used. Some of the property included in the bill of sale was shipped to the Hunter Construction Company in New York, but none used in building the highway at Eighty-four was shipped to it there or elser where. It remained in Washington county, in the possession of Hunter, until it was levied upon. It had continued in his possession after the bill of sale was executed and delivered, just as before, and, at the time it was seized,
After the admission by the appellee that there had not been an actual delivery of possession to it of the personal property seized by the sheriff as the property of N. C. Hunter, his sale to the company was fraudulent in law, if not in fact, and, therefore, void as to the execution creditor to whom he was indebted at the time of the sale to the company, unless there was such a constructive delivery to the vendee as would take the sale out of the rule requiring actual delivery. The property admittedly belonged to N. C. Hunter prior to his sale of it to the construction company, and, having been found by the sheriff in his apparently continued and uninterrupted possession and use, the burden was upon the appellee of proving by sufficient evidence the constructive delivery to it upon which it stands to sustain its title: Barr v. Reitz, 53 Pa. 256.
In passing upon the question of the sufficiency of con
The judgment is reversed and is now entered here for the defendant in the issue, and it is further ordered that he recover his costs.