29 Pa. Super. 208 | Pa. Super. Ct. | 1905
Opinion by
This controversy arises over the distribution of the proceeds of a sale of real estate, by the sheriff under proceedings upon a mortgage, executed and delivered by Joseph P. O’Brien to Benjamin Whitman, dated November 18, 1891, and duly recorded on the 24th of the same month. All parties concede that the mortgage was a -valid first lien entitled to be paid out
The appellant claims under a sheriff’s sale of the land as the .property of James Gaffney upon a judgment against him in favor of the John Kauffman Brewing Company, in an action which was commenced June 6, 1891, and in which judgment was entered May 4, 1894. The land in question was sold upon an execution under said judgment, and a deed for the same to T. A. Lamb was duly acknowledged by the sheriff on January 13, 1896. The appellant has by sundry conveyances succeeded to the title, if any, acquired by Lamb, the purchaser, at the sheriff’s sale, and by an assignment of the claim to the rights of the John Kauffman Brewing Company, the plaintiff in the judgment.
James Carney, the appellee, claims under an earlier sheriff’s sale of the land as the property of Gaffney. Judgments were, on August 18, 1891, entered against James Gaffney in the court of common pleas of Erie county in favor of John Hanley and the Second National Bank of Erie, and the money was subsequently made upon said judgments by the sale of personal property of the defendant upon executions. There was on the same day a judgment entered against James Gaffney in favor of Sylvester Carlow, for $1,612.50, in which Joseph P. O’Brien appeared as attorney for the plaintiff. Carlow was a brother-in-law of Gaffney and the evidence before the auditor would have justified a finding that, although Gaffney was indebted to Carlow in an amount exceeding $800, the judgment was entered for more money than was actually owing. There was, however, no evidence which would have warranted a finding that either O’Brien or James Carney had any knowledge of the excessive amount of the Carlow judgment. On August 19,1891, four judgments, aggregating about $2,600, were entered against James Gaffney in favor of James Carney,
When O’Brien, while acting as attorney for the execution creditors, purchased the land at the sheriff’s sale, for a less sum than the amount of the claims of his clients upon which it was being sold, a resulting trust arose in favor of his clients. They had a right to claim the benefit of the purchase, and to demand a conveyance if they thought fit to reimburse the sum actually paid, or an account for the profits in case of a resale. The purchase, however, was not absolutely void, but voidable merely at the election of those beneficially interested, the execution creditors : Leisenring v. Black, 5 Watts, 303 ; Fisk v. Sarber, 6 W. & S. 18; Campbell v. Pennsylvania Life Insur
The burden was upon the appellant to prove by evidence of a satisfactory character that the sheriff’s sale of the real estate under which the appellee claimed was fraudulent. It is not enough to charge fraud and prove in support thereof slight circumstances of suspicion only. The judgment of Carney upon which the property was sold was clearly valid and fór a debt actually owing and due, and the proceedings were in all respects regular; if, therefore, his right to this fund is to be defeated, it must be upon the ground that the sale was intended to hinder, delay or defraud other creditors. It was said by Chief Justice Mitchell in Werner v. Zierfuss, 162 Pa. 360, that “ it may be considered as the established result of our cases that if a creditor takes a judgment, or conveyance, or payment in any form, to secure an actual debt, the transaction will be valid against other creditors, although he knew (1) that the effect would be to postpone the others; (2) that the debtor intended it to have that effect; and (3) although he took it to aid that intent as well as to protect himself. The criterion is not the effect but the fraudulent intent. Without that the transaction cannot be impeached.” And, again, “ to impeach The payment or securing of an actual debt there should be evidence tending to show either, first, some • other advantage or benefit to the debtor beyond the discharge of his
The decree of the court below is affirmed.