Johns v. Erb
| Decision Date | 22 May 1847 |
| Citation | 5 Pa. 232 |
| Parties | JOHNS et al. <I>v.</I> ERB. |
| Court | Pennsylvania Supreme Court |
APPEAL from the District Court of Lancaster.
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Stevens, for plaintiff in error.
Penrose, contrà, took three points. 1. That the remedy here was by appeal. 2. That there was evidence that the father retained sufficient property to pay all debts due at the time of the conveyance to the son. 3. That the parties claiming under the assignment were estopped denying the validity of the claims thereby secured.
May 22. BELL, J.
As the issue tried in this case was directed by the judge of the District Court, when sitting on its equity side, it is conceded under the authority of Baker v. Williamson, 2 Barr, 116, and the cases there cited, that the writ of error brought for a review of the proceedings had before the decree, issued improvidently and must be quashed. By this disposition of it, we are enabled to arrive at the consideration of the litigated points springing from the exceptions taken to the account settled by the assignee of Jacob Erb, the report of the auditors thereon, and the final decree of the court below, disembarrassed of the technical errors which have been here assigned as committed on the trial of the issue. But although the whole subject is thus thrown open to us, we cannot, sitting as an appellate tribunal, look beyond the record as it existed in the District Court, nor take cognisance of any supposed mistake arising from causes to which the attention of that court was not called. It is not permitted us to proceed de novo as in appeals from the Orphan's Court, under the statutes confirming and regulating that jurisdiction; Dyott's case, 2 Watts & Serg. 557. Nor are we at liberty to look into other proofs than those submitted to the court below. We have, therefore, declined to hear the depositions taken by the appellee since the appeal.
The case stands clear, too, of any difficulty which might have arisen, had the fund been distributed by the assignee according to the directions of the deed of assignment, without notice of the intention entertained by the other creditors, to call into question the judgments entered in favour of Henry and Levi Erb, for it is confessed such notice was given before payment made to them, and that in consequence the assignee required and received from them an assurance of indemnity against any loss to which he might otherwise be subjected by a final decree. The questions presented by the appeal are, therefore, to be considered as though the trust fund was still in the hands of the assignee for distribution, subject to all equities residing in the cestuis que trust.
In the District Court the leading inquiry propounded for discussion and decision was broadly stated to be, whether the judgments entered by virtue of the warrants of attorney accompanying the bonds executed by the assignor to his sons Henry and Levi, were or were not fraudulent as against the other creditors of the assignor? The issues directed were so framed as to admit this general inquiry, as well as the narrower one, whether the bonds were given for more money than was due to the sons respectively, irrespective of the assertion of actual fraud. But it is obvious from the record, that, notwithstanding the broad range the investigation might have assumed, it was, before the auditors, and afterwards in the court, confined to the narrower limit, so far as the consideration of the bonds became the subject of examination. In this court, the same course has been pursued. It was not, as indeed upon the proof in the cause it could not be, successfully contended, that in the execution and delivery of the bonds, the father and sons contemplated such a fraud in hindrance and delay of the creditors as would avoid the securities in toto. The appellants, therefore, very properly restricted their allegations to an important mistake committed in ascertaining the items of which the aggregate sums called for by the bonds are made up.
Subordinate to the principal question and connected with it, another was much discussed on the argument, namely, whether, as insisted by the appellants, the conveyances of 3d April, 1838, and 11th February, 1842, of the lands in Warwick township, being in part voluntary, are to be treated as void against the creditors of the grantor, and as a consequence, the reconveyances from the son to the father to be regarded as merely operative to rescind the original contract of sale, or whether, as the appellee contends, the first conveyance vested in the sons unimpeachable estates in fee-simple, the reconveyances of which to the father are to be accepted as constituting the consideration of the obligations executed by the latter? But the aspect in which we view this case, renders a solution of this question unnecessary. Conceding to the appellants their position that the original transaction between the father and sons was rescinded by the verbal agreements and deeds of 1843, we have, after much reflection, arrived at the conclusion that the final decree pronounced by the District Court ought not to be disturbed. Repudiating the presence of actual fraud, which, as I have said, is not averred, we come to the inquiry, whether there is any such evidence in the cause as constrains us to the conclusion that the judgment bonds call for greater sums of money than were really due to the obligees respectively. In pursuing this inquiry, we must necessarily look to the proceedings had in the court below, and more particularly to the issues tried and determined by the verdicts of the jury, one of which was rendered after a full investigation of merits, and the other upon the same state of facts, by consent. I have already stated what was the leading question examined and decided under these issues. An inspection of the record makes it apparent that on the trial full opportunity was afforded to the litigant parties for a minute examination and discussion of the subjects of controversy, and that each came to the conflict armed with a knowledge of details which the previous elaborate investigation had elicited. The trial too was had before a tribunal peculiarly qualified to determine the disputed questions of fact, and it will scarcely be denied that it was the duty of the parties to furnish it with all the proof in their possession or power. We are, therefore, bound to presume this was done, more especially as there is no...
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Moore v. Dunn
...have decreed contrary to the finding thereon; he could have disregarded the verdict, as his conscience would not be bound by it: Johns v. Erb, 5 Pa. 232. But under the act assembly the verdict is conclusive and cannot be disregarded: Garrison's Ap., 38 Pa. 531; although it may be directed b......