Hartman v. Hefflefinger

• Court: Pennsylvania Superior Court
• Writing for the Court: MORRISON, J.
• Citation: Hartman v. Hefflefinger, 47 Pa.Super. 1 (Pa. Super. Ct. 1911)
• Decision Date: 11 May 1911
• Docket Number: 24-1911
• Parties: Hartman, Appellant, v. Hefflefinger

47 Pa.Super. 1

Hartman, Appellant, v. Hefflefinger

No. 24-1911

Superior Court of Pennsylvania

May 11, 1911

Argued March 14, 1911

Appeal by plaintiff, from judgment of C.P. Cumberland Co.-1910, No 243, on verdict for defendant in case of Charles A. Hartman v. William A. Hefflefinger and Emma Hefflefinger.

Replevin for goods sold at a sheriff's sale. Before Sadler, P. J.

The facts are stated in the opinion of the Superior Court.

The trial judge charged in part as follows:

Our view of the law is that if Mr. Gilbert in good faith made a sale on February 12, 1910, to Mrs. Hefflefinger, on the agreement that it should be credited on his indebtedness, and that understanding was carried out in good faith, and that Gilbert had made all the delivery that was possible. A sale is not good as against an execution creditor unless the goods pass from the defendant to the purchaser, or the purchaser acquires all the possession that it is possible for him to acquire. At that time it was not possible, that is on February 12, it was not possible for Gilbert to hand over the goods, because they had not been set apart to him. Our view is, if you find this was a valid sale, that Mrs. Hefflefinger had received all the possession possible for Gilbert to give that is, he had transferred them to her, but they were in the hands of Mr. Willis; they were out of his control, and he could not do any more than he did do, and if that is so, that he delivered all the possession possible, and there was a valid sale, then Mrs. Hefflefinger became the owner of them and the execution issued on February 28, 1910, and the levy made on the first of March, and the sale on March 17, conveyed no title to Mr. Hoffer's client, Hartman, and he cannot recover. We simply leave the question to you, if you find that on February 12 that Gilbert sold this property to Mrs. Hefflefinger in good faith, with the understanding that it should be credited on the indebtedness due by him to her, then your verdict should be for the defendants -- that is all there is in the case. I have reserved a question which I have already read to you. The simple question is, did Gilbert in good faith on February 12 sell this property to Mrs. Hefflefinger to be credited on her debt, and after it was set aside by Mr. Willis, did she take possession of it?

Verdict and judgment for defendant. Plaintiff appealed.

Errors assigned were portion of charge, and in entering judgment on the verdict.

F. H. Hoffer, for appellant, cited: Haldeman v. Duncan, 51 Pa. 66; Eagle v. Eichelberger, 6 Watts, 29; Golder v. Ogden, 15 Pa. 528; Hutchinson v. Hunter, 7 Pa. 140; Creps v. Dunham, 69 Pa. 456; McCandlish v. Newman, 22 Pa. 460.

T. Ralph Jacobs, with him Wetzel & Hambleton, for appellee. -- The property levied on must be in the power, or at least in the view of the sheriff, at the time the levy is made: Wood v. Vanarsdale, 3 Rawle, 401; Sheerer v. Lautzerheizer, 6 Watts, 543; Lowry v. Coulter, 9 Pa. 349; Welsh v. Bell, 32 Pa. 12; Duncan's App., 37 Pa. 500; Commonwealth Ins. Co. v. Berger, 42 Pa. 285; Linton v. Com., 46 Pa. 294; Carey v. Bright, 58 Pa. 70; Samuel v. Knight & Co., 9 Pa.Super. 352.

A sheriff's sale in the absence of the chattels, and without the defendant's waiver of the irregularity, is absolutely void: Cresson v. Stout, 17 Johns. (N.Y.) 116; Tibbetts v. Jageman, 58 Ill. 43; Brown v. Lipscomb, 9 Por. (Ala.) 472; Blanton v. Morrow, 7 Ired. Eq. (N. C.) 47; Ainsworth v. Greenlee, 3 Murph. (N. C.) 470.

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

OPINION

MORRISON, J.

This is an action of replevin brought to determine the right of possession to certain articles of personal property which formerly belonged to and were in the possession of Wallace H. Gilbert, a merchant, of Newville, Pennsylvania.

On February 11, 1910, Gilbert was, on his own petition, adjudged a bankrupt in the district court of the United States for the middle district of Pennsylvania. In his petition he, under the exemption laws, reserved the following: " Household goods under Act of 1849 Laws of Penna., consisting of bed and bedding, part of parlor suite, carpets, etc., $ 50.00 and balance of $ 250 in goods of store." Among his creditors were L. M. Hartman & Sons and Mrs. Emma Hefflefinger. He owed the former $ 192.82, evidenced by a note containing a waiver of the exemption laws of Pennsylvania. The latter he owed $ 411, evidenced by a judgment exemption note. It appears to be conceded in this suit that both claims were bona fide. On February 12, 1910, the bankrupt executed and delivered to Mrs. Hefflefinger all his right, title and interest in the household goods and merchandise taken, set apart and appraised to him in the bankruptcy proceedings in his estate under his claim for the exemption of $ 300. The goods and merchandise in controversy were not actually appraised and separated from the bulk of the bankrupt's estate until March 14, 1910, on which date Mrs. Hefflefinger, one of the appellees, took actual possession of them and has retained possession of said goods and merchandise ever since that date. It appears to be conceded that she allowed the bankrupt credit for the full value of the property in controversy, to wit, the sum of $ 300.

At the trial of the issue joined between the appellant and the appellees in this suit to determine the title and right of possession of the property which had been delivered to Mrs. Hefflefinger as above stated, the learned court clearly submitted to the jury, in substance, the bona fides of the sale by Gilbert to Mrs. Hefflefinger and told the jury that if the sale was honest and fair and all the delivery of the goods was made that was possible to make at the date of the sale, the property being then out of possession of Gilbert and mingled with his other property which had passed to his trustee in bankruptcy, then as against the plaintiff Mrs. Hefflefinger's title was good. The jury must have found the question so submitted in favor of the latter.

The plaintiff's...