Cover v. Manaway

• Decision Date: 21 February 1887
• Docket Number: 144
• Parties: Cover and wife v. Manaway
• Court: Pennsylvania Supreme Court

8 A. 393

115 Pa. 338

Cover and wife v. Manaway

No. 144

Supreme Court of Pennsylvania

February 21, 1887

Argued February 1, 1887

ERROR to the Court of Common Pleas of Fayette county: Of January Term, 1887, No. 144.

Ejectment by John Manaway against George W. Cover and Louise Cover for 116 acres of land in Henry Clay township, Fayette county. Plea, Not guilty.

The facts of the case as they appeared on the trial before INGHRAM, P.J., are as follows:

Both parties claimed under Jacob Staup who, up to 1872, was the owner of a tract of land in Henry Clay township, containing 234 acres and 131 perches. On the 12th of August, 1872, a judgment was entered against Jacob Staup in favor of John Collins, for $2,000, which became a lien on this tract of 234 acres and 131 perches. On the trial, title in Jacob Staup in 1872 was admitted, and the plaintiff gave in evidence the above mentioned judgment of John Collins entered to No. 139 September Term 1872, against Jacob Staup, and a writ of scire facias thereon to No. 230 June Term 1876, which was served on Jacob Staup, the defendant in the judgment, and George W Cover, terre tenant, and judgment of revival was entered against them for $2,529.34. Plaintiff offered the fi. fa issued on said judgment on the 10th of Feb. 1877, to No. 109 March Term, 1877. The return to the fi. fa. and subsequent proceedings were not offered in evidence, consequently it does not appear what was done, although in the charge the court assumed that the sheriff, to whom the fi. fa. was directed, had levied on and sold the tract of 234 acres and 131 perches to Collins.

On the 17th of January, 1877, before the sheriff's sale of the land, John Collins and G. W. Cover entered into the following agreement:

Agreement made and entered into this 17th day of Jan. 1877 between John Collins of North Union township, Fayette county Pa., of the first part and George W. Cover of Henry Clay township, county and state aforesaid of the second part, as follows: that a judgement held by the said John Collins against Jacob Staup be revived on scire facias, and that the land of the said Jacob Staup shall be sold on a writ issuing on said judgment, and that the said John Collins will buy in said real estate situated in Henry Clay township aforesaid -- provided the same does not sell for more than the judgment, and if said John Collins does so purchase said land he will then make a deed to Louise Cover for a part of said land, the number of acres to be determined as the amount of money found due George W. Cover upon settlement of all claims between Jacob Staup and George W. Cover and paid to Jacob Staup, and for him by the said George W. Cover -- is to thirty-five hundred dollars so shall the number of acres deeded to the said Louise Cover be to the whole number of acres in the tract of land aforesaid now estimated at two hundred and thirty-four acres, the balance of said tract of land to be conveyed to Jane Staup upon her paying to the said John Collins two hundred and seventy-five dollars, with interest from June 1875 until paid, provided, however, that she pays the same within two years from the date -- if C. Boyle and William Playford are satisfied -- but not otherwise. All costs accruing on said judgment and writ of execution and one half of all costs of deeds, survey and settlement, shall be paid by said Jane Staup as they may accrue, and the said George W. Cover hereby agrees to pay the other half of the costs of deeds, surveys and settlement as above mentioned. A full payment by each of the said parties to whom a deed is to be made shall comply strictly with the aforesaid agreement before they can demand or require a deed to be executed to them or either of them, as witness our hands and seals the day and year aforesaid.

Attest:

J. M. COLLINS.

JOHN COLLINS, [SEAL.]

G. W. COVER, [SEAL.]

On the 22d day of October, 1872, Jacob Staup and wife conveyed the whole of said tract of land to George Cover and Samuel B. Staup for $3,500.

On the same day George Cover and Samuel B. Staup entered into the following agreement:

Article of agreement, made and concluded this 22d day of Oct., 1872, between Samuel B. Staup etc., of the one part, and George W. Cover etc., of the other. Witnesseth: That whereas the parties to this agreement having purchased from Jacob Staup and wife, a certain tract of land situate in Henry Clay township, county and state aforesaid, containing 234 acres and 131 perches for the sum of $3,500, which tract of land was duly and carefully conveyed to them by deed bearing even date herewith, now, then, the parties aforesaid have agreed to make such payments on, and to have and possess such interest in said tract of land, respectively, as the following terms and article indicate and declare. 1. G. W. Cover aforesaid agrees to make the first payment of $1,500 on the tract of land aforesaid and also to pay one half of the judgment for $2,000, held by John Collins against said tract of land. 2. Samuel B. Staup aforesaid, agrees to pay the other one half of the judgment aforesaid. 3. The parties aforesaid shall own and have such interest in said tract of land respectively as they shall pay part of the purchase money aforesaid, i.e., the said Geo. W. Cover shall own and have the undivided 5-7 of said tract of land, and said Samuel B. Staup shall own and have the undivided 2-7 of said land.

Witness: G. CRAWFORD,

G. W. COVER, [SEAL.]

Witness: LOUISE STAUP,

S. B. STAUP. [SEAL.]

On the same day Jacob Staup and G. W. Cover entered into the following agreement:

Article of agreement made and entered into between Jacob Staup of etc., of the first part, and Geo. W. Cover, of etc., of the second part, this 22d day of October, 1872. Conditions are as follows: Jacob Staup agrees to make a deed to G. W. Cover for one half of his farm in Henry Clay township, etc., there being 234 acres in the farm as stated in the deed, and G. W. Cover agrees to pay three hundred dollars when deed is acknowledged to the said Jacob Staup, and if the said Jacob Staup or Louise Staup pays G. W. Cover three hundred dollars within three months from the date of the deed, G. W. Cover agrees to make a deed to Louise Staup for the one half of the farm deeded to him; and the said Jacop Staup further agrees to not hold G. W. Cover for the amount stated in the deed, whether it is deeded to Louise Staup or kept by G. W. Cover.

Witness our hands and seals.

Attested

SUSAN LOUISE STAUP.

JACOB STAUP, [SEAL.]

G. W. COVER. [SEAL.]

At the time of making the deed and these contracts, Jacob Staup was in jail charged with the murder of Alpheus Glover in the summer of 1872. He afterwards escaped and his whereabouts are now unknown.

On the 23rd day of June, 1873, Louise Cover claimed the land first under the agreement of Collins to convey to her, and second under a deed dated November 5th, 1872, from George W. Cover to her, then Louise Staup.

This deed was received in evidence under objection by the plaintiff; because the deed shows that the word "fifth" in the date of the acknowledgment is written over an erasure. The justice of the peace who took the acknowledgment was thereupon called, who proved the date and explained the erasure.

At the time of making this deed, George W. Cover was not indebted to Louise Staup. The plaintiff in rebuttal sought to show that this deed had been dated back by George W. Cover with the knowledge and consent of Louise Staup and that the purpose of the same was to hinder, delay and defraud the creditors of George W. Cover. This evidence sufficiently appears in the opinion of the Supreme Court.

The court submitted the question of fraud to the jury. The defendant presented inter alia the following points for charge:

4. There having been no narr. filed in the case, the description in the praecipe is insufficient, under the evidence in the case, to properly designate the land in dispute, and therefore the verdict must be for the defendant.

A. Refused.

5. The sale by the sheriff on the 3d day of Feb., 1879, to John Manaway of the land in dispute as the property of Geo. W. Cover, conveyed no title to Manaway, even if the deed from John Collins to Mrs. Cover was in fraud of creditors of Geo. W. Cover, for the reason that the judgment of W. H. Playford was entered on the 25th day of June, 1873, and was revived in 1878, after title was vested in Mrs. Cover, and she was not made a party or terre tenant in the writ.

A. Refused.

6. Under the pleadings and all the evidence in the case the verdict must be for the defendant.

A. Refused.

7. There is no proof that Geo. W. Cover, by the conveyance to the defendant, defrauded, hindered, or delayed, or attempted to defraud, hinder or delay any creditors of his, who are in any way connected with this case; and therefore the verdict must be for the defendant.

A. Refused.

Verdict for the plaintiff for the land described in the writ and thereupon judgment; whereupon the defendants took this writ and assigned for error inter alia the submission of the question of fraud to the jury under all the evidence, and the refusal of the court to affirm their points as shown above.

The judgment is reversed.

G. W. K. Minor, A. H. Coffroth and J. M. Core (W. G. Guiles and W. H. Ruppel with them), for plaintiffs in error.

A. D. Boyd (R. H. Lindsey with him), for defendant in error.

Before MERCUR, C.J., GORDON, PAXSON, STERRETT, GREEN and CLARK...