Barr v. Reitz

• Decision Date: 06 January 1867
• Citation: 53 Pa. 256
• Parties: Barr <I>versus</I> Reitz.
• Court: Pennsylvania Supreme Court

Page 256

53 Pa. 256

Barr versus Reitz.

Supreme Court of Pennsylvania.

January 6, 1867.

ERROR to the Court of Common Pleas of Jefferson county.

W. P. & G. A. Jenks, for plaintiff in error, cited Levy v. Wallis, 4 Dallas 159; Waters v. McClellan, Id. 196; Carpenter v. Mayer, 5 Watts 483; McVicker v. May, 3 Barr 224; Hugus v. Robinson, 12 Harris 9; Dunlop v. Bournonville, 2 Casey 72.

A. L. Gordon, for defendant in error, cited Carpenter v. Mayer, 5 Watts 483; Streefer v. Eckert, 2 Wh. 302; Hoffner v. Clark, 5 Id. 545; Hoofsmith v. Cope, 6 Id. 53; McBride v. McClelland, 6 W. & S. 94; Jordan v. Frink, 3 Barr 442; Chase v. Ralston, 6 Casey 539; Milne v. Henry, 4 Wright 358; Brawn v. Keller, 7 Id. 106; Steelwagon v. Jeffries, 8 Id. 411.

The opinion of the court was delivered, January 6th 1867, by AGNEW, J.

It is settled law that a voluntary sale of chattels must be accompanied by an actual change of possession, and the possession must continue in the purchaser. A temporary change and early return of the property into the hands of the vendor leaves it still exposed to the executions of creditors. A merely formal or constructive delivery will not defeat an execution. When such delivery does not attend the sale it is fraudulent per se, and the court is bound to tell the jury so.

The burden of proving the delivery lies on the purchaser, who must establish his possession by sufficient evidence. The authorities to sustain these positions are so numerous it would be an affectation of research to cite them all. Many of the cases will be found collected in the opinion delivered in Chase v. Ralston, 6 Casey 539. See also Milne v. Henry, 4 Wright 358; Brawn v. Keller, 7 Id. 106; Steelwagon v. Jeffries, 8 Id. 411. But in considering the question what is an actual delivery, the nature of the property and circumstances attending the sale must be taken into the account. We are not, in carrying out a mere rule of policy, to confound all distinctions between that which is capable of easy delivery and that which is not. Squared timber lying in the woods, or piles of boards in a yard, are incapable of the same treatment as a piece of cloth or a horse: Chase v. Ralston, 6 Casey 538; Haynes v. Hunsicker, 2 Id. 58; Herron v. Fry, 2 Penna. R. 263. So there are many cases which allow the force of those circumstances which take away any false color or appearance of ownership remaining in the seller: McVicker v. May, 3 Barr 224; Jordan v. Frink, Id. 442; Linton v. Butz, 7 Id. 89; Faunce v. Lesley, 6 Id. 121; Hoofsmith v. Cope, 6 Whart. 53; Brady v. Haines, 6 Harris 113; Forsyth v. Matthews, 2 Id. 100; Graham & Mellon v. McCreary, 4 Wright 515. To these may be added Dunlap v. Bournonville, 2 Casey 72, and Hugus v. Robinson, 12 Harris 9. Of Dunlap v. Bournonville it was said, in Steelwagon v. Jeffries, 8 Wright, that it stands on the very outer verge of settled principles, and perhaps the same remark may be made upon Hugus v. Robinson. But without affirming their doctrines to the extent these cases might seem to warrant, it is sufficient to say they are illustrations of the principle we have stated, that the circumstances may prevent the court from pronouncing it a fraud per se, and carry the case to the jury on the facts with proper instruction from the court on the law, if the jury find the delivery of possession merely formal or constructive. The principle which underlies all the cases is, that there must be an actual separation of the property from the possession of the former owner at the time of the sale, or within a reasonable time afterward, according to the nature of the property delivered.

But in effectuating this change, what difference does it make whether the property be removed from the owner or the owner remove from the property? It is not the mere place the property...