McKibbin v. Martin

• Decision Date: 10 March 1870
• Citation: 64 Pa. 352
• Parties: McKibbin <I>versus</I> Martin. McKibbin <I>versus</I> Kline.
• Court: Pennsylvania Supreme Court

Page 352

64 Pa. 352

McKibbin versus Martin.

McKibbin versus Kline.

Supreme Court of Pennsylvania.

March 2, 1870.

March 10, 1870.

March 2d 1870.

Before READ, AGNEW and SHARSWOOD, JJ. THOMPSON, C. J., at Nisi Prius

Error to the District Court of Philadelphia: No. 10 and 11, to July Term 1869.

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A. McClure and T. Cuyler, for plaintiff in error, cited McVicker v. May, 3 Barr 224; Long v. Knapp, 4 P. F. Smith 518; Barr v. Reitz, 3 Id. 256; Hugus v. Robinson, 12 Harris 1; Benford v. Schell, 5 P. F. Smith, 393.

T. J. Diehl and P. Archer, Jr. (with whom was L. C. Cassidy), for defendants in error, cited Clow v. Woods, 5 S. & R. 275; Cadbury v. Nolen, 5 Barr 320; Dunlap v. Bournonville, 2 Casey 72; Young v. McClure, 2 W. & S. 147; Milne v. Henry, 4 Wright 352; Brawn v. Keller, 7 Id. 104; Edwards v. Harben, 2 T. R. 587; Babb v. Clemson, 10 S. & R. 419; Hoffner v. Clark, 5 Wharton 545; Steelwagon v. Jeffries, 8 Wright 407; Dewart v. Clement, 12 Id. 413; Barr v. Reitz, supra; Meyers v. Wood, 1 Phila. R. 24; Randall v. Parker, 3 Sandford 97; Travers v. Ramsay, 3 Cr. C. C. R. 354; Reed v. Minor, Id. 32; Hamilton v. Russel, 1 Cranch 310; The Romp, Olcott 196; Meeker v. Wilson, 1 Gall. 423; Cadogan v. Kennett, Cowp. 432; Billingsley v. White, 9 P. F. Smith 464. Responsibility cannot be avoided by an advertisement: Williamson v. Fox, 2 Wright 214; Watkinson v. Bank of Penna., 4 Wharton 482; Little v. Clark, 12 Casey 114; Lincoln v. Wright, 11 Harris 76.

The opinion of the court was delivered, March 10th 1870, by SHARSWOOD, J.

There are probably no more difficult and embarrassing questions than those which relate to the respective provinces of the court and of the jury to determine what is law and what is fact. It would require a volume to consider the subject in all its bearings, and deduce accurate and intelligible principles from the great mass of the decided cases, and a philosophical treatise on this important head is still I think a desideratum of our legal literature. There are undoubtedly some rules clearly established — these are plain lines of demarcation, but there is a border land of controversy in which the opposing principles seem to be in continual conflict, the victory sometimes inclining to one side and sometimes to the other. This conflict often has ended in a reasonable compromise by which the question has become what is termed a mixed question of law and fact, to be submitted to the decision of the jury under proper instructions from the court.

One of the questions upon which difficulty has often arisen is fraud in the sale or transfer of chattels under the statute of 13 Eliz. c. 5, Roberts's Dig. 295. Such fraud may be either actual or legal. Actual fraud or fraud in fact consists in the intention to prevent creditors from recovering their just debts by an act which withdraws the property of a debtor from their reach. Fraud in law consists in acts which, though not fraudulently intended, yet as their tendency is to defraud creditors if they vest the property of the debtor in his grantee, are void for legal fraud, which is deemed tantamount to actual fraud, full evidence of fraud, and fraudulent in themselves, the policy of the law making the acts illegal: Baldwin, J., in Hanson v. Eustace, 2 How. 688. Actual fraud is always a question for the jury — legal fraud, where the facts are undisputed or are ascertained, is for the court: Dornick v. Reichenback, 10 S. & R. 90. "As remarked by an eloquent writer," says Chief Justice Gibson, "these statutes of Elizabeth produce the most beneficial effects by placing parties under a disability to commit fraud in requiring for the characteristics of an honest act such circumstances as none but an honest intention can assume; and they seem to have been expressed in general terms purposely to leave room for a large interpretation by the judges, who, in accordance with the spirit rather than the words, have engrafted on them such artificial presumptions and legal intendments as are ordinarily subjects of judicial construction. In fact they act exclusively by presumptions, not always inflexible indeed, but sometimes amounting to legal conclusions:" Avery v. Street, 6 Watts 247.

In Twyne's Case, which came up in the Star Chamber in 44 Eliz., and is reported 3 Rep. 80 b, Moore 638, one of the badges of fraud was declared to be that "the donor continued in possession, and used the goods sold or given as his own; and by reason thereof he traded and trafficked with others, and defrauded and deceived them." No distinction was attempted between actual and legal fraud, and the tribunal forbade any question as to law and fact. It is unnecessary to trace the decisions in England. Clow v. Woods, 5 S. & R. 275, decided by this court in 1819, is the magna charta of our law upon this subject. The principles settled in that case have been recognised and affirmed by a beadroll of subsequent decisions, which it would be a mere affectation of learning to cite. Without adverting to other points, it established that retention of possession was fraud in law wherever the subject of the transfer was capable of delivery and no honest and fair reason could be assigned for the vendor not giving up and the vendee taking possession. Since then the courts have been principally occupied in determining when the evidence of change of possession was such as to present a question of law for the court or of fact for the jury.

No point as to actual fraud arises on this record. That was submitted to the jury, and decided by them in favor of the plaintiff. The whole question of legal fraud, however, was reserved and judgment entered on the reservation for the defendant. If there was evidence from which a jury would have been justified in inferring, under instructions from the court, that there had been in point of fact an actual and exclusive change of possession, it ought, as we think, to have been submitted to them.

The reserved point comprehends two questions, which, in the consideration of the case, it will be best to keep distinct. First: was there evidence from which the jury would be permitted to find such a delivery, actual or constructive, as the law requires to make the sale valid as against creditors? Second: was the possession taken by the vendee exclusive of the vendors or concurrent with them, in point of law?

1. Whenever the subject of the sale is capable of an actual delivery, such delivery must accompany and follow the sale to render it valid against creditors. The court is the tribunal to judge whether there is sufficient evidence to justify the inference of such a delivery. If there is any question upon the evidence as to the facts, or resting upon the credibility of witnesses, the determination of that must be referred of course to the jury. But if not, it is incumbent upon the court to decide it, either by a judgment of nonsuit or a binding direction in the charge: Young v. McClure, 2 W. & S. 147; McBride v. McClelland, 6 Id. 94; Milne v. Henry, 4 Wright 352; Dewart v. Clement, 12 Id. 413. But it often happens that the subject of the sale is not reasonably capable of an actual delivery, and then a constructive delivery will be sufficient. As in the case of a vessel at sea, of goods in a warehouse, of a kiln of bricks, of a pile of squared timber in the woods, of goods in the possession of a factor or bailee, of a raft of lumber, of articles in the process of manufacture, where it would be not indeed impossible, but injurious and unusual to remove the property from where it happens to be at the time of the transfer: Clow v. Woods, 5 S. & R. 275; Cadbury v. Nolen, 5 Barr 320; Linton v. Butz, 7 Id. 89; Haynes v. Hunsicker, 2 Casey 58; Chase v. Ralston, 6 Id. 539; Barr v. Reitz, 3 P. F. Smith 256; Benford v. Schell, 5 Id. 393. In such cases it is only necessary that the vendee should assume the control of the subject so as reasonably to indicate to all concerned the fact of the change of ownership. Where nothing of the kind has taken place, it is the duty of the court to pronounce a mere symbolical delivery to be insufficient; but where there is evidence of such assumption of control, it is for the jury to say whether it was bonâ fide or merely colorable, and whether it was enough to give notice to the world. The question in such case is, did the vendee do all that he might reasonably be expected to do in the case of a real and honest sale? In Barr v. Reitz, 3 P. F. Smith 256, the rule was clearly expressed in the opinion of the court by Mr. Justice Agnew. "In considering the question what is an actual delivery, the nature of the property and circumstances attending the sale must be taken into the account. We are not, in carrying out a mere rule of policy, to confound all distinctions between that which is capable of easy delivery and that which is not. Squared timber lying in the woods, or piles of boards in a yard, are incapable of the same treatment as a piece of a cloth, or a horse. So there are many cases which allow the force of those circumstances, which take away any false color or appearance of ownership remaining in the seller." Then, after citing a number of decisions, it is added: "But without affirming these doctrines to the extent these cases might seem to warrant, it is sufficient to say they are illustrations of the principle we have stated, that the circumstances may prevent the court from pronouncing it a fraud, per se, and carry the case to the jury on the facts with proper instruction from the court on the law, if the jury find the...