Spackman v. Ott, 65 Pa. 131

Spackman v. Ott

65 Pa. 131 | Pa. | 1870

The opinion of the court was delivered, March 31st 1870, by

Sharswood, J.

Joseph Ripka, on the 5th of November 1857, executed a deed conveying to Samuel Winpenny in fee the ground-rent in question. It was absolute on its face, and after the verdict below must be assumed to have been for a valuable consideration, having been given and received in payment and extinguishment of a debt, due by the grantor to the grantee. It was not recorded, however, until April 3d 1867.

On November 20th 1857, Joseph Ripka executed a mortgage of this ground-rent with other real estate, to George Shields and Henry K. B. Ogle, in trust to secure certain of his creditors, conditioned for the payment by the mortgagor, within one year from the date, of a sum sufficient to discharge their debts with interest. George Shields died, and Harry G. Clay was appointed by the Court of Common Pleas trustee in his place. Afterwards Mr. Ogle, the other trustee, died, and Mr. Olay proceeded by scire facias on the mortgage, and the plaintiff, Samuel Spackman, became the purchaser at the sheriff’s sale, but bought, however, as agent for the trustee, as the jury have found. The. mortgage was recorded the same day.

It is contended that the deed to Winpenny not having been recorded within six months from its date, nor until long after the recording of the mortgage, the title derived under it must be postponed to that derived under the mortgage. It has not been and cannot be pretended that the purchase by the trustee at sheriff’s sale gave him any better title than he had before. The jury must have found that Ogle had notice of the deed to Winpenny, and that notice was communicated by him to Mr. Clay, after his * appointment and- before the sale. All question on that point, must be considered as at rest.

But it is certainly very doubtful, to say the least, whether the notice to Ogle before he became trustee can affect the eestuis que trust under that mortgage, if they can be considered as purchasers for value. In The Lessee of Henry v. Morgan, 2 Binn. 497, an ejectment against a trustee, it was held not to be competent to give evidence that he had notice of an unrecorded deed before his appointment, because it cannot affect the eestuis que trust. But *135were the creditors of Eipka, secured by the mortgage, purchasers for a valuable consideration, within the protection of the recording Act of March 18th 1775 ? (1 Smith’s L. 422.) It provides that an unrecorded deed “ shall be adjudged fraudulent and void against any subsequent purchaser or mortgagor for valuable consideration.” It is very well settled that an assignment in trust for the payment of debts is not within the protection of the act. The assignee is not a purchaser for value, neither are the creditors, having surrendered no right, nor agreed to any forbearance on the faith of the instrument: Twelves v. Williams, 3 Wharton 493. “ Perhaps nothing is better settled in this state,” says Mr. Justice Agnew, in In Re Fulton’s Estate, 1 P. F. Smith 211, “ by uniform and numerous decisions than this, that a voluntary assignee is the mere representative of the debtor enjoying his rights only, and no others ; and is bound where he would be bound; that he is not the representative of creditors and is not clothed with their powers; that he is but a volunteer and not a boná fide purchaser for value. Nor are the creditors for whom he holds his trust such purchasers under his deed.” See the cases there cited. Wherein does a mortgagee for the benefit of creditors differ from an assignee ? The ingenious counsel for the plaintiff has indeed argped very strenuously that the assent of the creditors to the delay of a year under the mortgage would amount to a contract to forbear for that period, and thus constitute them purchasers for value. But where was the evidence of their assent? Had they actually become parties to the mortgage, or executed a release or letter of license, there might have arisen such a question. There is nothing to show that every one of the creditors could not have proceeded against Ripka personally at any period. In Bixler v. Ream, 3 Penna. Rep. 282, the defendant endorsed on a bond held by the plaintiff an agreement to pay it in one year from the date, yet it was held that, there being no agreement to forbear, it was without consideration.

It is evident, from the determination of this question, that the plaintiff in error has no ground to complain of the admission of the evidence, or the refusal of the court below to affirm his points.

Judgment affirmed.