Coble v. Nonemakers

• Citation: 78 Pa. 501
• Parties: Coble <I>versus</I> Nonemaker.
• Decision Date: 01 October 1875
• Court: United States State Supreme Court of Pennsylvania

Page 501

78 Pa. 501

Coble versus Nonemaker.

Supreme Court of Pennsylvania.

June 5, 1875.

October 1875.

June 5th 1875.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON and WOODWARD, JJ.

Error to the Court of Common Pleas of Cumberland county: Of May Term 1875, No. 100.

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J. Hays, for plaintiff in error.—A purchaser, with notice, is bound in equity just as the person from whom he purchases: Jacques v. Weeks, 7 Watts 270 Uhler v. Hutchinson, 11 Harris 113; La Neve v. La Neve, Ambler 436. A grantee shall not set up his deed to the prejudice of one who had a prior right, of which he had notice: Murphy v. Nathans, 10 Wright 508; Sanger v. Eastwood, 19 Wendell 514; Gregory v. Thomas, 20 Id. 17; Bennett v. Earl, 21 Id. 117; Lewis v. Palmer, 28 N. Y. 271; Spraight v. Hawley, 39 Id. 441. A sale of chattels, although without delivery of possession, is binding between the parties: Boyle v. Rankin, 10 Harris 168. Coble could have recovered in replevin. Dennis v. Alexander, 3 Barr 50; Vandyke v. Christ, 7 W. & S. 373. But because he had that remedy in rem he was not excluded from proceedings in personam: Insurance Co. v. Whitney, 20 P. F. Smith 252; Scott v. Fields, 7 Watts 360; Railroad Co. v. Pennock, 1 P. F. Smith 250. In foreign attachment evidence is admissible to show that a prior assignment of the matter attached was fraudulent against the creditors: Moser v. Mayberry, 7 Watts 12; Sinnickson v. Painter, 8 Casey 384; Childs v. Digby, 12 Harris 23; Cowden v. Pleasants, 9 Barr 59; Cowden v. W. Branch Bank, 7 W. & S. 432; Stewart v. McMinn, 5 Id. 100.

S. Hepburn, Jr., and S. Hepburn (with whom was L. A. Gunster), for defendant in error.—Under a chattel mortgage their must be possession: Keller v. Nutz, 5 S. & R. 252; Fry v. Miller, 9 Wright 443; Bowen v. Burk, 1 Harris 149; Welsh v. Bell, 8 Casey 13. The chattel mortgage transferred the title to the mortgagee on default in the mortgagor: Budick v. McVanner, 2 Denio 170.

Mr. Justice WOODWARD delivered the opinion of the court, October 1875.

Undoubtedly, the most obvious remedy of the plaintiff would have been an action of replevin, in which the question of the right of the defendant to hold the stock of the drug store under his purchase from Eves could have been directly tried. The general rule is settled that an attaching creditor can acquire no claim to property in the hands of a garnishee, other than such as the debtor in a suit against the garnishee could himself assert. The judgment in the court below was entered in pursuance of this general rule. The fact was found by the record that the sale by Eves to Nonemaker was made for a valuable consideration, without any intention to defraud creditors, and Nonemaker was in possession of the goods in controversy when the attachment was issued against him as garnishee of Eves. Of course, as between the parties to the contract of the 20th of December 1868 the transaction was a final one, and all right of Eves in the property was gone. The inquiry presented here is, whether, by a proper application of the legal rule, the effect of the contract was to extinguish the rights of the plaintiff as well as those of Eves. This is the only subject of discussion, for the exceptions of the defendant on the trial, and urged on the argument, are supported by nothing that appears upon the record.

When Nonemaker bought this stock, he had full knowledge of the mortgage upon it, and of the two accompanying notes, which had been executed in May or June 1868. Indeed, he had drawn up the papers himself. The mortgage was a valid contract, as between the parties to it, although, possession under it not having been taken, it was waste paper as against execution creditors and innocent purchasers. But Nonemaker was not an innocent purchaser. It is true he had paid a valuable consideration, but he had the amplest notice of the plaintiff's equities. The whole transaction was one with which he had been connected from the outset. The drug store had originally belonged to the plaintiff, and had been purchased by Eves for Nonemaker's benefit. When he bought, therefore, he knew he was paying for property for which his vendor had never paid, and that the former owner was to be left for the recovery of his purchase-money to the hazards of litigation against an absent debtor resident in North Carolina. If the title had remained in Eves until the 1st of April 1871, the property would have been subject to the operation of the plaintiff's mortgage. Possession could have been taken by him at his discretion, the property sold, and the proceeds applied to the payment of the notes. And this Nonemaker perfectly knew. The original purchase-money had been $4000. Of this sum $2000 had been paid, and the consideration paid to Eves, when the stock was bought, in December 1868, was $2100. This, including interest, was something like the amount the plaintiff had received, and yet it is claimed, on the part of the defence, that the payment of this vested the title to the goods so absolutely in Nonemaker as to destroy every right of the plaintiff to proceed against them as the property of Eves.

A principle of law is never so applied as to promote or protect a fraud. In the mortgage contract there was nothing illegal, immoral or unfair. As against Eves, all its stipulations could have been enforced. Obtaining a personal judgment on the notes, the plaintiff could have levied on the property. And Eves could, by no voluntary act of his own, relieve it from the lien that rested on it, or evade his personal responsibility for the mortgage-debt. Did the joint act of Eves and Nonemaker shift the lien or destroy the responsibility? The title was taken by Nonemaker with accurate knowledge of the liabilities to which the goods were subject. That title had been held in...