Downing v. Gault

• Decision Date: 29 July 1898
• Docket Number: 197-1898
• Citation: 8 Pa.Super. 52
• Parties: Mrs. Margaret Downing v. B. F. Gault, Sheriff, Appellant
• Court: Pennsylvania Superior Court

8 Pa.Super. 52

Mrs. Margaret Downing v. B. F. Gault, Sheriff, Appellant

No. 197-1898

Superior Court of Pennsylvania

July 29, 1898

Argued May 17, 1898

Appeal by defendant, from judgment of C. P. Venango Co.-1896, No 55, on verdict for plaintiff.

Trespass. Before Criswell, P. J.

It appears from the record that judgment having been obtained against Mary D. Carpenter, who was conducting a boarding house in Oil City, __ Pa. __, and buying supplies from the plaintiff in the judgment, execution was issued and levy and sale made of the property in the boarding house. Plaintiff in this case, daughter of the defendant in the execution claimed the property on an alleged transfer from her mother. Notice having been given by the plaintiff of her alleged ownership she brought suit after the sale against the sheriff.

Verdict and judgment for plaintiff for $ 195. Defendant appealed.

Errors assigned were in his charge to the jury in that part thereof following, viz: " It appears that the mother was indebted at the time of this alleged sale. Being so, she had a right to make a sale and disposition of her property provided she sold to a bona fide purchaser for a valuable consideration." In his charge to the jury in that part thereof following, viz: " The testimony of the plaintiff, Mrs. Downing, is that 'I bought the property for one hundred dollars, provided I let my mother have her home with me.' A person who is indebted is not permitted by law to dispose of his property in consideration of future maintenance. Those who are indebted cannot put their property out of their hands and avoid their creditors in order to provide future maintenance for themselves. The testimony in this case in reference to that is somewhat vague. If it were more decided I would feel it my duty to say to you as a matter of law that under the evidence the plaintiff cannot recover."

John O McCalmont, with him John M. McGill, for appellant. -- The sale of lands or goods by an indebted person for less than their value is ipso facto a fraud in vendor and vendee: Davidson v. Little, 22 Pa. 245; Hill v. Leibig, 3 Pa.Super. 398.

In order to pass the title to certain property, where the rights of creditors are concerned, the sale must be bona fide for a sufficient consideration. The vendor must reserve to himself no rights, interest, privilege, profit or advantage that cannot be reached by execution: Hinton v. Curtis, 1 Pitts. 99.

W. J. Breene, of Breene & Wilbert, for appellee. -- The bona fides of the sale was for the jury: Bell v. McCloskey, 155 Pa. 319; Goddard, Hill & Co. v. Weil & Co., 165 Pa. 419.

The purchase was in good faith and for a valuable consideration: McGuire v. James, 143 Pa. 521.

Before Rice, P. J., Wickham, Beaver, Reeder, Orlady and Porter, JJ.

OPINION

ORLADY, J.

Mary D. Carpenter while indebted to Thomas E. Keating in the sum of $ 119.60, voluntarily transferred to her daughter, the plaintiff in this case, all of the personal property in a boarding house which was conducted by the mother. On the trial below the plaintiff testified to the consideration, viz:"

Q. Now, what were you to pay for the property? State the circumstances under which you bought the property.

A. Why, I bought it for $ 100, provided I let mother have a home with me. She said she had no other home if she sold that out.

Q. Pursuant to that arrangement then you purchased the property and took possession.

A. Yes, sir." The fair value of the property was between $ 250 and $ 300. Twenty dollars was paid on account at the time of the purchase and the balance was subsequently paid in full.

After the transfer the vendor remained in the house as one of the

...