Kendig v. Binkley

• Decision Date: 28 July 1899
• Docket Number: 166-1898
• Citation: 10 Pa.Super. 463
• Parties: Eli J. Kendig and Christian Kendig, Administrators of Christian Kendig, deceased, Fannie B. Millhouse, Amos Millhouse and John Millhouse v. Henry Binkley, Appellant
• Court: Pennsylvania Superior Court

10 Pa.Super. 463

Eli J. Kendig and Christian Kendig, Administrators of Christian Kendig, deceased, Fannie B. Millhouse, Amos Millhouse and John Millhouse v. Henry Binkley, Appellant

No. 166-1898

Superior Court of Pennsylvania

July 28, 1899

Argued November 18, 1898

Appeal by defendant, from judgment of C. P. Lancaster Co.-1890, No 1, on verdict for plaintiffs.

Feigned issue. Before Brubaker, J.

It appears from the evidence that the defendant in the feigned issue levied, inter alia, upon nine steers or fat cattle as the property of Asher Millhouse. These cattle were claimed by Eli J. Kendig and Christian Kendig, administrators of Christian Kendig, deceased, as purchasers of said cattle from Millhouse.

At the trial of the case below the court left the question to the jury as to whether the alleged sale of the cattle from Millhouse to Kendig involved an actual fraud upon Binkley.

Verdict and judgment in favor of E. J. Kendig and Christian Kendig administrators for the nine steers in controversy. Defendant Henry Binkley appealed.

Error assigned among others was refusing binding instructions in favor of defendant and against Christian Kendig's administrators.

Reversed.

W. U. Hensel, of Brown & Hensel, for appellant. -- Nothing is better settled in Pennsylvania by a long and unbroken line of decisions than that, in cases of the sale of personal chattels, their retention by the vendee may be a fraud in law and as against execution creditors when it is not a fraud in fact nor in the mind or intention of the vendee. We need only cite to this effect such cases as Milne, Browne & Co. v. Henry, 40 Pa. 352, and Dewart v. Clement, 48 Pa. 413.

When the possession does not follow, as well as accompany, the transfer, it is a fraud in law, without regard to the intention of the parties, and becomes a question for the court and not for the jury: Young v. McClure, 2 W. & S. 147; McBride v. McClelland, 6 W. & S. 94.

From these and earlier decisions down to the present time there has been no change of the law upon this subject. It has been notably reasserted in Stephens v. Gifford, 137 Pa. 219, and by this court in Weller v. Meeder, 2 Pa.Super. 488: " The retention of possession of personal chattels is fraud in law when the subject of the transfer is capable of delivery, and no honest, fair reason can be asserted for the vendor not giving, and the vendee not taking, possession."

Nor is the doctrine in the least affected, shaken or modified by the later case of Hill v. Leibig Manufacturing Company, 3 Pa.Super. 398, based on and reaffirming Evans v. Scott, 89 Pa. 136, Crawford v. Davis, 99 Pa. 576, and Renninger v. Spatz, 128 Pa. 524.

With all the exceptions to the general rule established by Clow v. Woods, 5 S. & R. 275, it has never been held that actual fraud on the part of the vendee must be proved to the satisfaction of the jury before there can be a verdict for the execution creditor, and yet this is exactly what the court did in this case.

D. F. Davis, with him A. O. Newpher, for appellees. -- It is well settled that a change in the location of the property is not always necessary or even practicable. Due regard must be had to the character of the property, its intended use, the nature of the transaction, position of the parties, etc.: Hugus v. Robinson, 24 Pa. 9; Ziegler v. Hendrick, 106 Pa. 87; Renninger v. Spatz, 128 Pa. 524; Goddard, Hill & Co. v. Weil & Co., 165 Pa. 419; Williams & Co. v. Rolling Mill Co., 174 Pa. 299; McGuire v. James, 143 Pa. 521.

The case in hand more nearly resembles Hill v. Leibig Mfg. Co., 3 Pa.Super. 398, and Renninger v. Spatz, 128 Pa. 524.

Before Rice, P. J., Orlady, Smith, W. W. Porter and W. D. Porter, JJ.

OPINION

W. D. PORTER, J.

The defendant in this issue was plaintiff in a judgment entered on November 18, 1889, against Asher Millhouse and, on December 24, 1889, caused an execution to issue on said judgment and a levy to be made on nine head of cattle, among other property, found in possession of Millhouse. Kendig claimed the cattle, and this feigned issue was framed to try the question of title. Kendig having died, his administrators were duly substituted as parties plaintiff. Upon the trial the following facts appeared in evidence and were undisputed: Millhouse was in possession, as a tenant, of a farm owned by Kendig, who lived upon another farm about a mile distant. In September, 1889, Millhouse bought of John Brubaker the nine steers or fat cattle which are the subject of this litigation, agreeing to pay for them in sixty days, received them into his possession and kept and fed them upon the farm which was in his exclusive occupancy. The time of payment for the steers having passed, Millhouse was unable to pay and sold them to Kendig, who was to pay the claim of Brubaker. The cattle were driven to Millersville, where they were weighed, on December 10, 1889. Kendig paid Brubaker the amount due him and agreed to keep the cattle at his, Kendig's, place, all night. The cattle were returned to the farm of Millhouse and to the very stalls which they had before occupied, the next morning, so that they had been out of the possession of Millhouse at most one day. Millhouse continued to feed and care for the cattle, as he had done before, down until the time of the levy, on December 24, 1889. Millhouse testified that Kendig told him how to feed the cattle and came there himself " nearly every week." There was no evidence of any change in the indications of ownership, nor of change as to the relation in which Millhouse stood as to the premises upon which the cattle were kept. Millhouse testified that he attended to the cattle for Kendig, but there is no evidence whatever as to what the arrangement between them was. Upon these undisputed facts the defendant asked for binding instructions, which the learned judge of the court below refused, charging the jury, inter alia, " Before you should render a verdict for Binkley (defendant) you must be satisfied that both Kendig and Millhouse intended, by the sale, to hinder and delay Binkley from collecting his claim, or that Kendig had knowledge that Millhouse intended to hinder and delay Binkley from collecting his claim." The jury found in favor of the plaintiff and the defendant appealed.

The refusal of binding instructions in favor of defendant is the subject of the eighth specification of error, and in the view which we take of the questions involved is conclusive of the whole case. If the only question arising under the evidence had been the existence of actual fraud, it would have been proper for the court to submit the question of the existence of such fraud to the jury under the instructions given. In this case, however, it was for the court first to determine whether the undisputed facts disclosed such a case of possession retained by the vendor, after the alleged sale, as to condemn the transaction as a legal fraud, void as to execution creditors of the vendor. Had there been...