McMarlan v. English

• Decision Date: 22 November 1873
• Citation: 74 Pa. 296
• Parties: McMarlan <I>versus</I> English.
• Court: Pennsylvania Supreme Court

Page 296

74 Pa. 296

McMarlan versus English.

Supreme Court of Pennsylvania.

October 17, 1873.

November 22, 1873.

October 17th 1873.

Before READ, C. J., AGNEW, SHARSWOOD, WILLIAMS and MERCUR, JJ.

Error to the District Court of Allegheny county: No. 11, to October and November Term 1873.

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A. Blakeley, for plaintiff in error.—Under the evidence the court should have decided as matter of law that the sale was fraudulent: McKibbin v. Martin, 14 P. F. Smith 352; Bentz v. Rockey, 19 Id. 77; Miller v. Garman, Id. 134; Redfield & Rice Manufacturing Company v. Dysart, 12 Id. 62.

J. W. Kirker, for defendant in error.—The facts in this case presented the question whether there was actual fraud in the sale, — this was a question for the jury: Dornick v. Reichenback, 10 S. & R. 90; McKibbin v. Martin, 14 P. F. Smith 356. Whether the change of possession is actual and bonâ fide is for the jury: McVicker v. May, 3 Barr 224; Forsyth v. Matthews, 2 Harris 100; Hugus v. Robinson, 12 Id. 9; Dunlap v. Bournonville, 2 Casey 72; Bastian v. Dougherty, 3 Phila. R. 30.

The opinion of the court was delivered, November 22d 1873, by MERCUR, J.

About the 1st of April 1872, Hugh C. English purchased and took possession of the property in question. It consisted mainly of a small stock of goods. He continued in possession thereof down to the time they were levied upon as the property of Andrew B. English. That levy was made March 7th 1873. The plaintiff in error, however, claims that Andrew retained a concurrent possession with Hugh until about the 1st of June 1872. There is some evidence to sustain that allegation. It is shown that in the months of April and May 1872, Andrew and his wife were occasionally in the store, and sold a few goods to customers.

An explanation was given of these acts, which otherwise might have been stronger evidence of Andrew's concurrent possession. Before and at the time of the sale Andrew resided, with his family, in a part of the same building in which the stock of goods was kept. Hugh was unmarried, and during the winter previous to the sale made his home with Andrew, and occasionally assisted in the store. Andrew continued to reside in the house until some time toward the latter part of May 1872. In going from the kitchen to other rooms which he occupied as his dwelling, it was necessary to pass through the store-room. As Hugh had assisted while Andrew owned the goods, so Andrew assisted after Hugh purchased them. After Hugh's purchase he claimed and exercised exclusive ownership over the property. He held himself out to the world as the sole owner. He replenished the stock from time to time. Andrew did not act, and made no claim inconsistent with Hugh's right and possession. Nevertheless, if the execution had been issued while Andrew continued to reside in the building, the case would not have been entirely clear of difficulty, and the concurrent possession should have been submitted to the jury. It is well settled where the transfer of possession corresponds with the sale and the nature of the property sold, and the relations of the parties, the sale will be valid unless fraudulent in fact. Hence it was held where two brothers in failing circumstances sold the stock in trade of a coach...