34 Pa. Super. 31 | Pa. | 1907
Lead Opinion
Opinion by
On November 22, 1905, W. P. Chubbs executed and delivered unto John B. Miller, the plaintiff, in trust for the benefit of the creditors of the former, a deed of voluntary assignment covering all of his property, real and personal, except personal property to the value of $300 which was reserved in the deed for the use of the grantor.
We cannot determine from the record now before us whether
The claim to this property, first made in the deed itself, perfected by the prompt application for appraisers and their official designation of what was covered by the claim, resulted in leaving the title of the assignor to that property undivested, as if the deed had never been made, or as if these particular items had been specially reserved from the operation of the deed. In Peterman’s Appeal, 76 Pa. 116, Mr. Justice Williams thus describes the effect of the appraisement pursuant to a general reservation in a deed of assignment: “ Is the appellant then entitled to the portion of the fund he claims ? It is clear that he is, unless his right to it was divested by the deed of assignment. Whether it was or not, depends upon the construction to be given to the exception in the deed. He had the undoubted right to reserve, for the use of himself and familjq property to the value of $300. His right to except it out of the assignment is founded on the exemption act of April 9, 1849, but his right to it as against the assignee depends upon the exception of the deed. It is true that the deed does not specify or define the property intended to be excepted, but .leaves it to be selected by the assignor1. But his light of selection is not confined to any particular description of property, nor is it subject to any condition whatever ; and his right to the property, when selected, is as perfect as if it had been specially excepted out of the assignment.” The same principle is declared in McFarland’s Estate, 16 Pa. Superior Ct. 152. Whether, therefore, the bay horse was specially reserved in the deed, as the statement — not questioned — in the history of the case declares, or the reservation, general in the deed, was made specific by the subsequent claim and appraisement, in either event the assignee took no title to the horse as against the assignor or the defendant claiming under and through the
At the time of the execution of the deed of assignment Chubbs, the assignor, was the owner of a farm and resided on it.- He had thereon a lot of personal property, including not only the horse already referred to but the other articles named in the writ of replevin. After the deed had been delivered and recorded, to wit: on November 27, 1905, Jackson, the defendant, went to the farm, and, without the knowledge or consent of the assignee, removed therefrom the property embraced in the writ.
The Act of April 19,1901, P. L. 88, provides that a defendant who desires to contest, in court, the title to or right of possession of property replevied, must file an affidavit of defense “ setting up the facts denying the plaintiff’s title and showing his own title to said goods and chattels,” and authorizes the court to enter judgment in favor of the plaintiff “ for such goods and chattels as to which the court may adjudge the affidavit insufficient.” The sufficiency of such an affidavit must be determined by the same rules that control in other actions where like affidavits are required. It must state frankly and fairly facts that support the claim advanced; not legal conclusions or mere inferences drawn by affiant. If the claim made be one of absolute ownership whilst the supporting facts averred show, at most, but a special or qualified ownership or right of possession — such as would arise from a pledge or other form of bailment for instance — without disclosing the additional facts necessary to determine the nature, extent and duration of such special right, such an affidavit would be plainly insufficient.
Turning then to the affidavit we find first, a general averment that the chattels replevied “ are not the property of the plaintiff, but are owned by and belong to deponent as owner thereof.” This is but a conclusion, not more specific than the short plea of “property,” and, of course, valueless. Then follows an averment that the goods were delivered to deponent by Chubbs before the writ issued ; but as such, may, if delivered
A careful examination of the written agreement referred to discloses no support for the averment of absolute ownership in defendant. It does not evidence an intention on the part of Chubbs to divest himself of the title to, and ownership of, the personal property therein mentioned. On the contrary, it clearly indicates that the beneficial ownership was to remain in him. No transfer of possession accompanied or followed the agreement or was intended to, but the possession remained as before, with the right of the owner to(fully use and enjoy the property without rent, service or condition except the promise that he would not “ sell or dispose of it until the sum of $400 is paid in full or without the consent of said Joseph Jackson.” We think the plain purpose of the paper was to create a chattel mortgage, a pledge of the property specified as security for the performance of the primary obligation referred to in the paper, viz.: the payment of a sum of money. But as the pledge was not completed by the delivery of the property the contract, as to this, remained executory and conditional, and the defendant could not execute it himself. The affidavit does not aver that Jackson had taken the property mentioned in the writ for the purpose of selling it and applying the proceeds to the payment of the balance of his debt, returning the surplus, if any, to Chubbs or his assignee. Indeed, he does not aver that at the time of the seizure any of the debt of $400 remained unpaid. The agreement covered a considerable amount of property not embraced in the writ of replevin, to wit: “ Ten cows, a hay press, scales, etc.” The affidavit admits that Chubbs,
It is‘argued by the learned counsel for the appellant that the deed of assignment under which the plaintiff claims was a nullity, because the operation of our insolvent act of 1901 has been held to be suspended whilst the national bankrupt act of July 1, 1898, remains in force: Potts v. Smith Mfg. Co., 25 Pa. Superior Ct. 206 ; Bank v. Gass, 29 Pa. Superior Ct. 125. But the act of congress excepts from its operations certain classes of persons, viz.: wage earners and farmers, “ and as to such persons the Act of June 4, 1901, P. L. 404, is in force : ” Bank v. Gass, supra. In the present case it is averred in the plaintiff’s statement that “ W. P. Cliubbs owned and resided on a farm.” In the absence of any denial this ought to be a sufficient foundation for the assumption that he was a “ farmer,” and hence our statute would be operative. But it has not been made clear to us, nor was it to the court below, why the deed of assignment depended for its vitality on the act of 1901, or why it is not just as effective now as it would have been before the passage of that act.
As to ail property mentioned in the writ except the bay horse the judgment is affirmed; as to the horse, the judgment is reversed and a procedendo is awarded. The costs of this appeal to be paid by appellee.
Dissenting Opinion
Dissenting Opinion by
I agree with the majority opinion reversing the judgment as
The plaintiff having declared for the property as assignee of William P. Chubbs and wife, for the benefit of creditors, defendant filed an affidavit of defense setting up ownership and right of possession, and actual possession of the property replevied, before the writ issued. But on motion and argument the court held the affidavit of defense insufficient, and directed judgment against the defendant, and our question is, ought this judgment to be sustained?
The defendant’s claim to the property was under the writing executed and delivered by W. P. Chubbs to him, as follows:
“ Know all men by these presents, that I, William P. Chubbs, of Little Britain township, Lancaster county, Penna., do, by these presents, assign, transfer and set over to Joseph Jackson, of Little Britain township, Lancaster county, Penna., the'following property : Ten cows, gasolene engine, hay press, tank, belt, scales, etc.; one bay horse, new top buggy, surry; said cows are on the property now ; said party, namely, Wm. P. Chubbs, is not to sell or dispose of said property until the sum of $400 is paid in full, or without the consent of said Joseph Jackson ; if said sum is not paid in sixty days, then in that case said Joseph Jackson shall have the right to take possession of said property to sell or dispose of it, to apply the proceeds from such sale to payment of said sum ; said Wm. P. Chubbs further agrees with consent of said Joseph Jackson, to have a public sale of said property; in that case he is to receive proceeds of said sale, either in cash or bankable notes to liquidate or pay said sum of $400 at time of said sale. Witness my hand and seal, the 26th day of Sept., A. d. 1905. W. P. Chubbs, Seal.”
Jackson avers in his affidavit of defense that he paid the $400 referred to in the above writing, and that on November 27, 1905, Chubbs delivered to him the property in question and he took and retained possession thereof. It further appears that on November 22, 1905, Chubbs and wife made a deed of voluntary assignment to John B. Miller, the plaintiff, for the benefit of creditors. This assignment gives rise to the questions in dispute in this case.
The learned court, in the opinion holding that the affidavit
The question then is, can this doctrine of the court be sustained? It is true that Jackson did not have a right to the possession of the property in question till November 26, 1905, and he did not get possession of it until November 27, 1905, and this was several days after the execution and delivery of the assignment of Chubbs and wife to the plaintiff, but, in my opinion, it does not follow that Jackson obtained the property unlawfully, and that he could not hold it as against the plaintiff, the voluntary assignee of Chubbs and wife. Under the facts stated in his affidavit of defense, which must now be assumed to be true, Jackson had a lawful right to go to Chubbs and take possession of the property in question, unless Chubbs would at once repay him the $400 which he had paid for the benefit of Chubbs, as recited in the writing above quoted. It is not pretended that Jackson had been repaid more than $150 of this sum.
The writing of September 26, 1905, from Chubbs to Jackson, as between them, was valid and enforceable, although it was conditional, and might not have been good as against bona fide purchasers without notice or execution creditors of Chubbs.
A plaintiff in replevin must recover, if at all, on the strength of his own title, not on the weakness of his adversaries : Reinheimer v. Hemingway, 35 Pa. 432 ; Swope v. Crawford, 16 Pa. Superior Ct. 474.
Under all of the authorities Miller, assignee, is a mere volunteer. It was not in the power of Chubbs to divest Jackson’s rights in the property replevied by assigning to Miller. “ An assignee for creditors is not a purchaser. He is a mere volunteer. The assignee claims through the assignor. His rights rise no higher. The creditors claim through the assignee. They have his title, nothing more : ” Paxson, J., in Kent, Santee & Co.’s App., 87 Pa. 165. See also Wright & Slingluff v. Wigton et al., 84 Pa. 163, and cases therein cited: Crawford County et al. v. Bank, Haskins’s App., 164 Pa. 109, and Smith v. Equitable Trust Co., Appellant, 215 Pa. 418. The latter case seems to me to put this question beyond controversy.
Clearly, under the facts conceded and those averred in* the affidavit of defense, Jackson had the right on November 27, 1905, under the executory contract between him and Chubbs, to the possession of the property in dispute. If no assignment had been made, and Chubbs had refused to deliver the property to Jackson, he could have maintained replevin for it, and if the assignment only placed Miller in the shoes of Chubbs, I cannot see why Jackson was not lawfully entitled to take possession of the property when he did. I am, there
.1 would reverse the judgment with a procedendo.