207 Pa. 513 | Pa. | 1904
Opinion by
The learned trial judge has stated all the facts essential to the determination of the case. He held that the testimony
The property was purchased by agreement in 1892 or 1893, a house was erected thereon and in January, 1895, it was conveyed by deed to Mrs. Thomas. In October, 1897, Thomas and his wife gave a judgment, bond secured by a mortgage on the property for $4,400 to the Iron City Deposit & Loan Association ; and in June, 1898, they gave another judgment bond to the association secured by mortgage on the property for the payment of $600. Subsequently, on June 4, 1900, judgments were entered against Thomas on both bonds. The indebtedness was created at the dates of the respective bonds and mortgages. The Larimer avenue property was purchased by Thomas in February, 1900, and conveyed to him by deed in the following September. The indebtedness due F. E. McGillick, the appellant, was for work done and materials furnished subsequent to September 20,1900, in the erection of certain houses on the Larimer avenue property under a contract with Thomas, and for which the appellant filed a mechanic’s lien against the property. This property was sold November 8, 1901, by the sheriff upon a judgment in favor of the Westmoreland Guarantee Building & Loan Association, and the proceeds of sale were applied in payment of liens having priority over the appellant’s claim. He now alleges that, notwithstanding the record title is in Mrs. Thomas, her husband is the actual owner of the Penn township property, and asks the court to enter a decree subrogating his lien to the rights of the Iron City Deposit & Loan Association, the party to whom the fund for distribution arising from the sale of the Larimer avenue property was awarded.
In his opinion on the exceptions to the auditor’s report, the learned trial judge finds : “ There is no evidence that at the time the Penn township property was conveyed to Mrs. Thomas, David Thomas was in debt or was contemplating entering into any business from the hazards of which he desired to protect this property. The testimony shows affirmatively that the in
The law applicable to the facts of this controversy is now well settled by numerous decisions of this court. “It does not follow,” says Gordon, J., in Monroe v. Smith, 79 Pa. 459, “that because a deed is voidable as to existing creditors, by reason of the grantor’s fraud, it is therefore voidable as to subsequent creditors; for it is bad only to those whom it is intended to defraud. It is true there are cases where the fraudulent intent may be construed to extend to future creditors, as where the grantor, at the time of the execution of the deed, has entered into, or is about to enter into some hazardous business,
Here, as the court has found on sufficient evidence, Thomas at the time of the conveyance of the Penn township property was not in debt or contemplating entering into any hazardous business, and could, therefore, convey his property to his wife with or without a consideration. But if it be conceded, as claimed by the appellant, that Thomas was indebted at the time the Penn township property was conveyed to his wife, it would simply render voidable the deed as to his then existing creditors and not as to the appellant, whose debt was incurred five years later, there being no testimony to justify an inference that he at that time anticipated incurring any indebtedness or entering into any business whatever.
The conclusion of the learned judge of the court below on