100 Pa. 446 | Pa. | 1882
delivered the opinion of the court October 5th 1882.
This action by the defendant in error was to recover damages for the sale of his personal property, as the property of one McFarlane. Some two and a half years prior to this alleged trespass the property had been sold on execution against McFarlane and bought by the defendant in error. The attempt was made by the plaintiff in error, to attack the validity of that sale. If there was any fraud therein, it was a fact to be found by the jury, and not one in law to be declared by the court. It was claimed to have been made by collusion between the defendant in error and McFarlane with a view to defraud the creditors of the latter. This question was fully and clearly submitted to the jury. The court charged “if any or all of the circumstances surrounding this transaction indicate that there was an understanding or arrangement between Clark and McFarlane to have this sale made for the purpose of hindering, delaying and defrauding the creditors of McFarlane, then no title would pass under that sheriff’s sale to John Clark, because it was a fraudulent sale, and Clark could not set up a title acquired under and through fraud.” Still further, it charged if they were satisfied from all the circumstances given in evidence that there was a fraudulent arrangement between Clark and McFarlane to make sale and purchase this property through a sheriff’s sale, then Sheriff Pentz, who levied upon and sold this same property afterward, could not be called to respond in damages to the plaintiff.”
The sale was not made on an execution in favor of the defendant in error. He resided in another county and was not personally present at the sale. He authorized his son, who was carrying on business for him in the vicinity, to bid for him. The son, who was confined to his bed by sickness, requested the sheriff to bid a sum specified. When the property was exposed to sale the defendant in the execution at the request of the sheriff bid the sum specified and the property was struck down to the defendant in error. Several persons were present at the sale. No one bid higher. The validity of the judgment on which the execution issued is unquestioned. All the forms of law were complied with, the property sold at a fair price, most of it in lots it is time; but there is no evidence that it would have brought more if it had been sold by items. The defendant in error was not consulted in regard to the sale, and gave no directions as to the manner of making it. Standing then in the
A wide range was given in the admission of evidence, all the circumstances connected with the sale of other property about the same time on the same execution, the possession and control thereof, and the conduct and declarations of the parties to the execution, at the sale, were given in evidence. Under a clear and fair charge the jury found the defendant did not participate in any fraudulent arrangement connected with the sale.
The eighth specification of error is to the answer to the third point. The answer may be liable to criticism. The point asked for a declaration of law, on certain facts stated, that the sale was void. This the court declined to affirm, but referred the facts therein stated to the jury for their determination. If there had been any evidence to justify the submission to the jury, of the facts stated in the point, the latter part of the answer would have been objectionable. If however there was not sufficient evidence of the fact alleged to submit to the jury, then the court ought to have denied it, and the other part of the answer did no injury to the plaintiff in error. On a careful reading of the evidence, we do not find any sufficient to justify its submission. Still further, the mere fact of an arrangement with the defendant in error that the sale should be for-the benefit and advantage of the defendant in the execution, did not of itself make the sale absolutely void. It would be voidable by any creditor defrauded, but was good as between the parties thereto. The point wholly ignores all question of fraud. On no principle then can the sale be declared void. It is not necessary to consider the other specifications separately. They present no just cause of complaint.
Judgment affirmed.
