103 Pa. 7 | Pa. | 1883
delivered the opinion of the court,
John Swackhammer was a judgment creditor of Philip Swackhammer. The legal title to the land in controversy was in Philip at the time, and before John's judgment was entered. John, therefore, had the rights of a judgment creditor of Philip, but that was all ; he had net the right of a purchaser of the legal title against the equitable owner, and was certainly bound by express notice of the equitable title, given at any time before his own title was acquired. This has been very often ruled. In Reed’s Appeal, 1 Harris 475, Gibson, C. J.,
In the present case a parol trust was set up in favor of Mary Sill, and abundant proof was given in support of it. Philip Swackhammer-himself testified that he held the title to the land in trust for his sister Mrs. Sill, that he had never paid a dollar of the purchase money, and had no interest in the property. He made a deed to Mrs. Sill for the premises in November 1877. So far therefore as the parties to the transaction were concerned there was no question as to the fact of the trust, and its recognition and complete execution by the trustee. The question of fraud on the part of Charles Sill in making this arrangement.in order to cheat his creditors, was left to the jury with proper instructions by the learned court below, as was also the question as to the consideration of the purchase being furnished by the wife. But on the question of notice of the wife’s title the court charged that unless such notice wTas given to John Swackhammer before the entry of the Johnson judgment, he would not be affected by it. in this we think there was error. The authorities are very clear, that notice is sufficient if given at, or at any time before, the sheriff’s sale. Thus, in Reed’s Appeal, supra, Gibson, C. J., said on p.,479, “ Not to insist on that, it is enough that White made the bargain and paid all that was paid ; for it has always been supposed that notice of a resulting trust, or an incumbrance is early enough at the sheriff’s sale of the legal title; but if the judgment creditor had the immunity of a purchaser, notice would then be too late to impair the value of his security. A sheriff’s vendee with notice buys exactly what the judgment creditox’ can sell;
The learned court below was therefore in error in holding that the notice was not effective unless it was given before the Johnson judgment was entered. This ruling requires the reversal of the case on the fourth and ninth assignments. The effect of a notice however depends upon its terms. The purchaser is of course bound by every material fact of which lie is directly and distinctly notified. lie is also bound by such facts as lie would have learned by inquiry if inquiry had become a duty. Now' it must be admitted that there is no evidence of any express, direct notice that Mary Sill held title of any kind in the land. A. careful examination of all the testimony fails to disclose any such notice. Squires testifies that Charles Sill notified John Swackliammer, before the sale and on the day of sale, that Philip Swackliammer had no interest in the property and that he, John, knew' it. Angle says that Charles Sill t-old John that Philip “ hadn’t, a dollar in the place.” Charles Sill was asked : “ Q. Did yon give Mr. Swuickhammer any notice at the time of sheriff's sale about howT the title was 2 A. I did before he sold it; yes, sir, I told him that Philip Swackliammer hadn’t, a dollar in it, and he knew it; I will notify you of that now, right- away, I said ; if you meddle with it you will get in trouble before you get through with it; something like of that.” Other witnesses testified to conversations with John Swackliammer in which he said he knew' that Philip had paid no money for the property, that lie knew that Charles Sill owned it, that he believed that Charles Sill’s money paid for it, and that he did not believe that Philip had a cent in it. All these conversations were before the sheriff’s sale, and one of them was testified to have taken place in November 1873, which was shortly after the Johnson judgment was entered.
In addition to the foregoing it was proved that Charles Sill and his wife had lived on one of the tracts and cultivated both, for many years, that Philip Swackliammer had never occupied either lot in any manner, and that Philip and John Swackhammer were both brothers of Mrs. Sill, and that John lived hut 2¡j¡- miles distant and occasionally visited Mrs. Sill and her
“It was over 40 years from the first time I knew of their living there. Q. You had frequently been there during those 40 years? A. Yes, sir. Q. You knew that Philip Swackhammer had never lived there? A. Yes, sir. Q. You did not go and ask Mary one word ahoutit? A. No, sir.” He also testified that Philip had come to him in 1873 and asked him to become surety for him on the judgment note to Johnson, and was asked, “Q. Up to that time you had supposed it belonged to Charles Sill ? A. I suppose so of course. Q. That was the first intimation you had that Charles Sill did not own it? A. The first I ever knew was the time when he came after the money, and I stated as I have stated to you.”
It would seem from this testimony that John Swackhammer believed until 1873 that Charles Sill owned the land. Ye think that in the circumstances developed' by the foregoing testimony, John Swackliammer became subject to a duty of inquiry as to the state of the title, and was bound by such facts as would have been discovered by the prosecution of the inquiry. It is true that ordiparily where husband and wife occupy land together by residing on it, the legal presumption is that the possession of the wife is the possession of the husband, but it does not follow that that presumption is to shut out and destroy all other inferences which may be drawn from such possession. In Jamison v. Dimock, 14 Norr. 52, where a married woman claimed title by a parol contract of sale, against a subsequent purchaser for value, without notice of her title, Mr. Justice Sterrett said on p. 55, “the admitted possession of the defendants from October 1875, was notice of Mrs. Dimock’s equitable title not only to Iierdic’s vendee, but to the assignees of the mortgage, as well as the purchaser at sheriff’s sale. .It does not appear that inquiry was made by either of them for the purpose of ascertaining by what right defendants were in possession. It was unquestionably their duty to make such inquiry, and having neglected to do so, they were affected with constructive notice of such facts as would have come to their knowledge in the proper discharge of that •duty.” In Hottenstein v. Lerch, Leg. Int. Oct. 27th 1882, 12 W. N. C. 4, we held a purchaser at sheriff’s sale bound by notice of a wife’s title, in consequence of her possession, though jointly with her husband, of the land in controversy. It is not a necessary and conclusive inference in all circumstances that when a husband and wife occupy land by joint residence and cultivation, the title can only be in the husband. In this state, since 1848, married women are the owners in their own right of real estate held by them before marriage or acquired by gift or purchase after marriage, and if
Judgment reversed and venire de novo awarded.