Barrell v. Adams

• Decision Date: 12 December 1904
• Docket Number: 12-1904
• Citation: 26 Pa.Super. 635
• Parties: Barrell v. Adams, Appellant
• Court: Pennsylvania Superior Court

26 Pa.Super. 635

Barrell v. Adams, Appellant

No. 12-1904

Superior Court of Pennsylvania

December 12, 1904

Argued October 25, 1904

Appeal by defendants, from decree of C.P. Northumberland Co., equity docket, 1902, No. 250, on bill in equity in case of Annie M Barrell, Alice Sizer and Frederick Sizer v. Susan K. Adams and George G. Adams, administrators of George C. Adams deceased.

Bill in equity for an injunction.

The opinion of the Superior Court states the case.

Error assigned was the decree enjoining sale of the lands.

Affirmed.

S. B Boyer, for appellants. -- A creditor has a right to seize and sell any real estate to satisfy his debt in which his debtor is believed to have an interest. Whether a title would pass or not was to be tested by an action of ejectment: Taylor's Appeal, 93 Pa. 21; Winch's App., 61 Pa. 424.

F. B. Moser, of Lark & Moser, with him D. W. Shipman, for appellee. -- Where the process of law is being used against right and justice, to the injury of another, the right of the latter to invoke the intervention of a court of equity cannot be doubted: Coal Co. v. Ryon, 188 Pa. 138; Hunter's App., 40 Pa. 194; Artman v. Giles, 155 Pa. 409; Davis v. Michener, 106 Pa. 395; Winch's App., 61 Pa. 424; Taylor's App., 93 Pa. 21.

Where, at the time of the issuing of a scire facias to revive a judgment, a deed is on record from the judgment debtor, and the terre-tenant is not named in the scire facias, the land is relieved from the lien of the judgment: Suter v. Findley, 5 Pa.Super. 163; Uhler v. Moses, 200 Pa. 498; Long v. McConnell, 158 Pa. 573; Baum v. Custer, 22 W.N.C. 145; Lyon v. Cleveland, 170 Pa. 611.

Judgment creditors are not affected by a fraudulent deed made by the debtor after the entry of their judgments, inasmuch as the fraudulent grantee takes title subject to their judgment. A conveyance intended to defraud creditors is not void, but only voidable by the creditor whom it was intended to defraud, and this does not include prior lien creditors: Fidler et al. v. John, 178 Pa. 112; Byrod's App., 31 Pa. 241; Fisher's App., 33 Pa. 294; Dungan's App., 88 Pa. 414; Zuver v. Clark, 104 Pa. 222; Henderson v. Henderson, 133 Pa. 399; Long v. McConnell, 158 Pa. 573.

Before Rice, P. J., Beaver, Orlady, Smith, Porter, Morrison and Henderson, JJ.

OPINION

MORRISON, J.

The plaintiffs filed their bill in equity asking the court to restrain the defendants from selling certain real estate of the plaintiffs on an execution issued on a judgment against Aaron Barrell. To this bill the defendants demurred, and their demurrer being overruled, they then answered and afterwards upon hearing the court granted an injunction restraining the defendants from selling the land, mentioned and described in the bill, for the purpose of satisfying the judgment against the defendants therein.

The appellants' paper-book is so badly arranged and printed that we have had much difficulty in gleaning from it the necessary facts for an intelligent disposition of the case. But, as we understand the material facts, they are as follows: On and prior to June 26, 1893, Aaron Barrell was seized in fee simple and was in possession of the land described in the bill. On July 25, 1891, a judgment was entered in the court of common pleas of Northumberland county, in favor of George C. Adams and against Aaron Barrell to No. 296 of September term, 1891 for $ 1,000. On June 25, 1893, Aaron Barrell and wife conveyed said land by deed duly executed, and recorded on June 28, 1893, to Anna M. Barrell and Alice Sizer. Subsequently these grantees conveyed three small tracts, portions of said land, to William S. Adams, George W. Cook and Wilson Willow, respectively. On July 3, 1896, there was an amicable revival of the above entitled judgment for $ 600 in favor of George C. Adams and against Aaron Barrell to No. 299 of September term, 1896, but without notice to Anna M. Barrell and Alice Sizer, terre-tenants. The deed of these terre-tenants was on record from June 28, 1893, and they were not made parties to said revival nor did they give their consent in writing to the revival and continuance of the lien of said judgment against them. Therefore the lien of said judgment expired as to the land conveyed to them by Aaron Barrell in five years from the entry of said judgment, to wit: on July 25, 1896, and in the meantime no execution had been issued on said judgment and consequently no levy had been made on the land of these terre-tenants. On July 1, 1901, a sci. fa. to revive the said judgment No. 296, September term, 1891, revived to No. 299, September term, 1896, against Aaron Barrell, was issued by the defendants with notice to Alice Sizer and Anna M. Barrell, terre-tenants. And on August 15, 1901, an alias sci. fa. was issued by said defendants upon the judgment No. 299, September term, 1896, against Aaron Barrell with notice to said terre-tenants; and on February 17, 1902, the defendants, plaintiffs in said alias sci. fa., suffered a voluntary nonsuit as to Anna M. Barrell and Alice Sizer terre-tenants, and took judgment against Aaron Barrell for want of an appearance. Subsequently the defendants caused execution to be issued on said judgment and in pursuance thereof, the sheriff levied upon the said land of the plaintiffs as the property of Aaron Barrell and advertised the same for sale. Upon this state of facts the court below granted a preliminary injunction and afterwards made it permanent, restraining the defendants from selling the said land upon the judgment against Aaron Barrell.

The learned counsel for the appellants took this appeal from the decree and argues that the defendants had the right to levy upon the plaintiffs' land and sell it upon the theory that they took it subject to the payment of the Aaron Barrell judgment, as purchase money; and secondly, that they had a right to have the land sold by the sheriff and then bring an action at law to test the title thereby acquired.

The learned counsel also urges that the land was liable to be sold because it was conveyed to the plaintiffs to defraud the creditors of the grantor, one of whom was George C. Adams, the plaintiff in said judgment. But we have a long line of cases deciding that a deed is not fraudulent as to a creditor whose debt was secured by a judgment or other lien on the land. This because the grantee necessarily takes subject to the lien, and the creditor may pursue the land just as if it had been conveyed to one who purchased in good faith for a full consideration. The prior lien creditor may follow the land, irrespective of changes in the title, whether honest or dishonest. A judicial sale on his lien vests in the purchaser the title which the debtor had when the lien attached, and divests that of the debtors grantee: Haak's Appeal, 100 Pa. 59; Fidler et al. v. John, 178 Pa. 112; Byrod's Appeal, 31 Pa. 241.

In the light of these and many other cases it is of no consequence in the present inquiry whether the conveyance from Aaron Barrell to the plaintiffs was fraudulent or not as to other...