60 Pa. 187 | Pa. | 1869
The opinion of the court was delivered, by
— Bernard Douredoure, at a time when he was unquestionably solvent, made a settlement of part of his estate for the separate use of his wife. He afterwards embarked in business and failed. He assigned all his estate for the benefit of his creditors. He then made an arrangement with William Taylor, to which the consent of the assignees and all his creditors was given, by which not only all the assigned but also the settled estates of his wife were to be conveyed to Mr. Taylor, who executed a declaration of trust, dated December 24th 1855, that he held the same upon condition that they were to be sold and the proceeds to be applied to repayment to him of the sum of $20,634, or thereabouts, already advanced and expended by him in purchase of debts and liabilities of said Bernard Douredoure, and of all other sums to be advanced by him for account of said Bernard Douredoure, and upon repayment to him of all sums so due,
Assuming the assignment to be void, the learned judge proceeded to apply to the case the principle settled in Re Wilson, 4 Barr 431, that for payments made under the trust before an adverse claim the assignee by a void assignment is protected, but only for such; and on that assumption his ruling was undoubtedly correct. But if the "conveyances to Taylor were not void, but constituted a valid mortgage to secure past and future advances, then his instructions to the jury as complained of in the 3d and 4th specifications were erroneous. If there was no personal assumption by Taylor of Douredore’s debts — if he was not bound by contract to discharge them, then according to Terhoven v. Kerns, 2 Barr 96, and Bank of Montgomery County’s Appeal, 12 Casey 170, advances made by him after a junior lien would be subject to it. But as mortgagee in possession he would be entitled to a ■credit for all sums paid on prior encumbrances, for taxes, premiums of insurance, repairs and other similar charges. If, on the other hand, Taylor was under obligation by contract to make advances, if he had bound himself personally to pay Douredoure’s debts, he would be entitled to the security of his mortgage for the advances made by him for this purpose though subsequent to the junior lien: Parmentier v. Gillespie, 9 Barr 86; Moroney’s Appeal, 12 Harris 72. The instruction to the jury therefore that Taylor was not entitled to credit for any payments made by him subsequent to the attachment, which were not contracted prior to that time, was erroneous, and the 3d specification of error must be sustained.
The 4th specification refers to a part of the charge not made the subject of exception below, and cannot therefore be noticed here.
The 5th specification is grounded on the 4th exception taken to the charge that Taylor the garnishee was a trustee for the benefit of creditors, and therefore had no right to apply insurance-moneys received by him to the rebuilding of houses owned by Douredoure. Undoubtedly if Taylor was such a trustee this instruction was correct; but as our conclusion is that he was not, but merely a mortgagee, it is equally clear that if before the date of the attachment he had, with the consent of the mortgagor, made contracts for the rebuilding of the property destroyed by
The 6th specification of error is grounded on the 5th exception to the charge that the decree of the Supreme Court was not conclusive as between Taylor and the attaching creditors as regarded the land of Mr. Douredoure. It appears that in 1862 a bill in equity was filed in the Supreme Court by Mr. and Mrs. Douredoure against Mr. Taylor, setting forth the several conveyances to and the declaration of trust by him, and that on December 1st 1860 an account had been stated by Mr. Taylor, showing a large balance in his favor, and that it was then agreed by him to accept in discharge certain portions of the real estate of Mr. Douredoure remaining unsold freed from the trust, and that he would convey to Mrs. Douredoure the remaining portions thereof, being part of the estate originally settled upon her. The bill prayed for the specific execution of this contract. It alleged also that Taylor, as part of the original arrangement, agreed and undertook to assume and pay the debts of the said Bernard Douredoure. Taylor filed an answer admitting the allegations of the bill, but setting up several attachment executions against Douredoure which had been served upon him, and among others that now before us by Cornelius & Baker. Thereupon a supplemental bill was .filed, making all the attaching creditors parties, and among others, Cornelius & Baker appeared and answered, setting up that the original conveyances to Taylor were fraudulent and void as against them; that their attachments were valid and subsisting, and bound all sums of money in the hands of Taylor received under the alleged trust.
The cause was set down and heard on bill, answer and proofs, and a decree was made dismissing the bill as to the attaching creditors, but ordering that the contract should be specifically carried into execution; that the plaintiffs should execute and deliver to Taylor a release of certain property of Douredoure from the operation of the trust so that it should become absolutely his, .and that Taylor should convey to Mrs. Douredoure what remained unsold of her original separate estate. The learned judge below appears to have thought that so far as Mrs. Douredoure was concerned, this decree ought to be regarded as conclusive upon all parties; but that as between Mr. Douredoure, Mr. Taylor and Cornelius & Baker, that when the bill was dismissed as to,[the attaching creditors, the court in effect said they would not adjudicate on that question; consequently it remained open for the decision of the jury. In this instruction we think that there was error. ■ The creditors were made parties in order that they might be heard if anything they had to say in opposition to the case made by the bill. If that case was true in fact they had no just claim upon Mr. Taylor as garnishee; if not true, as they were afforded the opportunity of
It is abundantly clear that to render a decree conclusive against a party, it need not be against him particularly by name. It is enough that it is adverse to his interest: Johnston v. Churchill,
Judgment reversed, and venire facias de novo awarded.