Schmucker v. Lawler

38 Pa. Super. 578 | Pa. Super. Ct. | 1909

Opinion by

Henderson, J.,

The effect of the Act of March 28,1905, P. L. 62, was to render fraudulent and voidable a sale in bulk of merchandise or fixtures or both as against any creditor of the seller who institutes an appropriate proceeding to invalidate such sale. As to such creditor merchandise sold is liable to execution as if no sale had taken place. The act does not prescribe a particular mode of procedure against such property, and the remedy of the creditor is that which existed in favor of judgment creditors before the act was passed. The process known as an attachment execution was authorized by the Act of June 16, 1836, P. L. 755. It is supplementary to the writ of fieri facias and intended to reach certain classes of personal property not subject to that writ. The thirty-fifth section of the statute provides that a-debt due the defendant or a deposit of money made by him or of goods or chattels pawned, pledged or demised may be attached and levied in satisfaction of a judgment. The property subject under this section is that of the defendant in the judgment which is due to him from another or which he has deposited, if money, or goods or chattels which he has pawned or pledged or in any way delivered to another for a limited period, property in the thing all the time remaining in the depositor or pledgor. The writ is not available for a seizure and sale of goods in the possession of another than the defendant not held for, and as the property of, the latter. Such was, in effect, the construction of the act in Good v. Obertauffer in the district court of Philadelphia, 1 Tr. & H., note to sec. 1182, and this view was approved in Lennig’s Appeal 9 W. N. C. 503. In the case before us the appellant did not hold the property under any pledge or demise from the former owner. He bought and paid for it, and as between him and the seller it was his absolutely, but under the act of 1905 his title was liable to be defeated by the seller’s creditors who were at liberty to disregard the sale and proceed against the property as if no sale had taken place. The property was subject to seizure in the hands of the purchaser by the seller’s creditor, and this could be done by writ of fi. fa. as in the case of any other goods subject to levy and sale: Wilson v. Edwards, 32 Pa. Superior Ct. 295. The purchaser did not become responsible for the debts of the seller. He might lose the goods he bought, but could not be considered in any sense a debtor of the execution defendant. We conclude, therefore, that the facts in this case do not support an attachment execution and the judgment must be reversed.

Judgment is reversed.