125 Pa. 295 | Pa. | 1889
Opinion,
This is an action of trespass., brought by William S. Lobach against John Kichline, a constable, for seizing and selling, on
Kichline, the constable, made his levy on September 10,1886, upon an execution in his hands in favor of George D. Meyers against John Mertz ; he removed the carriage from Hoffman's warerooms to the Washington Hotel, where on October 8th following he sold it at public sale to Theo. F. La wall, for ©75.
The whole question turned upon the bona lides of the sale from Mertz to Fenner, and upon the bona lides of William S. Lobach. Did he purchase the carriage in good faith, and upon a valuable consideration ? Hoffman’s engagement to hold the possession for the purchaser, it is conceded, would fill the requirements of the law, in respect of delivery, and no question of legal fraud is raised upon the record. The only question is as to the existence of actual fraud. Was the sale by Mertz to Fenner fair or fraudulent ? If fraudulent, was Lobach party to it, or cognizant of it, at the time of his purchase ? If the sale by Mertz to Fenner was not made with intent to hinder, delay, or defraud creditors, but was a bona fide and a fail-sale, for a valuable consideration, then certainly Lobach is entitled to recover in this case, for his title was derived from Fenner ; and, although Mertz was indebted, Fenner would not be affected by a fraudulent intent on the part of Mertz, of which he had no notice : Reehling v. Byers, 94 Pa. 316; Scott v. Hei
Applying these principles to the case now under consideration, it is plain that the first subject of inquiry was as to the nature of the transaction between Mertz and Fenner, and we cannot see why the offer embraced in the second assignment of error should not have been admitted.
The pivotal and most important question involved in the case was the good or bad faith of Lobach; and whilst Lobach cannot be held for the fraudulent character of the transaction between Mertz and Fenner, if he knew nothing of it, or was not put upon inquiry concerning it, yet it was proposed to show, not only that Mertz was pursued by his creditors, especially by Meyers; that he had been arrested for fraud, etc., but that Fenner or Mertz went to Lobach and induced him to advance the money on this carriage, and to pay Fenner the amount of his note; that the note was paid and surrendered to Fenner; that Lobach was cognizant of these facts, and generally that there was a conspiracy between the three persons named to defraud Meyers. The offer was in some respects inaccurate and somewhat general in terms, but as it was not objected to on that ground, and the court seems to have understood its import, we think it should have been, received. “ The plaintiff’s right to recover in this action,” says the learned judge, “ depends entirely xrpon whether the sale from Fenner to Lobach, the plaintiff, was made in good faith, no matter whether the sale from Mertz to Fenner was in good faith or bad faith.” The first part of this statement of the law, if properly understood, is undoubtedly correct; for if the sale from Mertz to Fenner was fraudulent, and Lobach knew it, then the sale from Fenner to Lobach could not have been made in good faith; this made Lobach party to the fraud.
But the expression that it was “ no matter whether the sale
The judgment is reversed, and a venire facias de novo awarded.