Miller v. Jackson

• Decision Date: 07 October 1907
• Docket Number: 94-1906
• Citation: 34 Pa.Super. 31
• Parties: Miller v. Jackson, Appellant
• Court: Pennsylvania Superior Court

34 Pa.Super. 31

Miller v. Jackson, Appellant

No. 94-1906

Superior Court of Pennsylvania

October 7, 1907

Argued November 14, 1906 [Syllabus Matter] [Syllabus Matter]

Appeal by defendant, from order of C.P. Lancaster Co.-1905, No. 37 making absolute rule for judgment for want of a sufficient affidavit of defense in case of John B. Miller, Assignee for Benefit of Creditors, v. Joseph Jackson.

Replevin for chattels.

The plaintiff filed the following statement of claim:

John B. Miller, assignee of William P. Chubbs and wife, of Little Britain township, Lancaster Co., __ Pa. __, says that on November 22, 1905, William P. Chubbs, who owned and resided on a farm at Oak Hill, Little Britain township, this county, with his wife executed a deed of assignment of all his property, real and personal, for the benefit of the creditors of said William P. Chubbs, to him, the said John B. Miller.

That said deed was properly executed and delivered, and was on November 24, 1905, at 11:30 A. M., entered of record in the recorder's office of Lancaster county in assignor's book 6, p. 84.

That among the personal property transferred to him under this deed of assignment was a gasolene engine, belt and tank, one bay horse, a surrey and top buggy, and all of the abovenamed articles were on the farm of assignors in Little Britain township, and were in the custody and under the control of this affiant.

That on November 27, 1905, Joseph Jackson, the defendant, without any warrant or authority of law, and with due notice that the above property had been committed into the care, custody and control of this affiant, came upon the premises in Little Britain township, and took and carried away all of above-named articles, and removed them to his farm in Little Britain township, where he still retains them.

That at the time of the unlawful seizure and removal of the goods as aforesaid, to wit: one gasoline engine, belt and tank, one bay horse, a surrey and top buggy, the defendant had no claim of title or ownership in or to the said goods, and the removal of the same was without warrant or authority of law.

The defendant filed the following affidavit of defense:

The articles enumerated and set forth in plaintiff's statement, to wit: A gasoline engine, belt and tank, one bay horse, a surrey and top buggy, are not the property of the plaintiff, but are owned by and belong to the deponent, and did belong to deponent as owner thereof at and before the time the writ of replevin in this suit was issued. Defendant obtained said goods from William P. Chubbs, the former owner thereof, who delivered said goods and chattels to deponent before said writ of replevin was issued. The plaintiff has no title to said goods as assignee, unless as assignee for benefit of creditors, and deponent under advice of his counsel denies plaintiff's right to claim them under any of the acts of assembly relating to assignments for benefit of creditors, as said acts are not in force, but are suspended by reason of the national bankrupt act enacted by congress of the United States on July 1, 1898. The bay horse referred to in plaintiff's writ and statement does not belong to plaintiff, but the same was retained by said William P. Chubbs under his claim of exemption, which was filed by said plaintiff in the prothonotary's office of said court on December 4, 1905. See trust book 20, page 77. The said William P. Chubbs by agreement in writing, a copy of which is hereto appended and made part hereof, agreed that said goods were the property of defendant upon the payment of a note of $ 400, which defendant paid. The note referred to, of $ 400, was dated September 27, 1905, due in sixty days from date. A hay press, included in said agreement, said Chubbs sold for $ 150, and turned the money or note over to deponent, who credited the said $ 150 note on said $ 400 note.

All of which he expects to be able to prove upon the trial of the said action, and further saith not.

COPY.

" Know all men by these presents, that I, William P. Chubbs, of Little Britain township, Lancaster county, __ Pa. __, do by these presents assign, transfer and set over to Joseph Jackson, of Little Britain township, Lancaster county, __ Pa. __, the following property: Ten cows, gasolene engine, hay press, tank, belt, scales, etc., one bay horse, new top buggy, surrey; said cows are on the property now; said party, namely, William P. Chubbs, is not to sell or dispose of said property until the sum of four hundred dollars is paid in full, or without the consent of said Joseph Jackson; if said sum is not paid in sixty days then in that case said Joseph Jackson shall have the right to take possession of said property to sell or dispose of it, to apply the proceeds from such sale to payment of said sum; said Wm. P. Chubbs further agrees, with consent of said Joseph Jackson, to have a public sale of said property; in that case he is to receive proceeds of said sale, either in cash or bankable notes, to liquidate or pay said sum or four hundred dollars at time of said sale.

" Witness my hand and seal, the 26th day of September, A.D. 1905.

" Witness: W. P. Chubbs, [Seal.]

" W. C. Whiteside."

The court in an opinion by Landis, P. J., made absolute rule for judgment for want of a sufficient affidavit of defense.

Error assigned was the order of the court.

Affirmed in part.

B. F. Davis, for appellant. -- The plaintiff in replevin must recover upon the strength of his own title, and not upon the weakness of the title of his adversary: Reinheimer v. Hemingway, 35 Pa. 432; Swope v. Crawford, 16 Pa.Super. 474.

In the instrument under seal, signed by Chubbs, the title to the articles included in the writ of replevin was transferred by William P. Chubbs, subsequently the assignor, to Joseph Jackson, now the appellant, which instrument is binding on Chubbs and is valid as between the parties: Swope v. Crawford, 16 Pa.Super. 474; Raymond v. Schoonover, 181 Pa. 352; Kent, Santee & Co.'s App., 87 Pa. 165; Wright v. Wigton, 84 Pa. 163; Crawford County v. Bank, 164 Pa. 109.

The plaintiff has no standing in this case as voluntary assignee for the benefit of creditors, because the assignment or insolvency acts of Pennsylvania are superseded by reason of the general bankruptcy law of July 1, 1898: Nehf & Son's Est., 14 Pa. Dist. 343; Dolhenty's Est., 11 Pa. Dist. 187; Potts v. Smith Mfg. Co., 25 Pa.Super. 206; Parmenter Mfg. Co. v. Hamilton, 172 Mass. 178 (51 N.E. 529); Harbaugh v. Costello, 184 Ill. 110 (56 N.E. 363); Rowe v. Page, 54 N.H. 190; Wescott Co. v. Berry, 4 Am. Bank Rep. 264; Bruss-Ritter Co., 1 Am. Bank Rep. 58; In re Etheridge Furniture Co., 1 Am. Bank Rep. 112.

Edwin M. Gilbert, for appellee. -- The paper in controversy cannot and did not pass title even as between Chubbs and Jackson, and was not intended to. It comes nearer being a bill of sale than anything else, but lacks the elements of that: Hill v. Leibig Mfg. Co., 3 Pa.Super. 398; Hastings v. Sprouls, 10 Pa.Super. 82; Lehr v. Brodbeck, 192 Pa. 535; Barlow v. Fox, 203 Pa. 114.

The national act, July 1, 1898, has clearly, fully and unqualifiedly excluded a farmer from its operation: Potts v. Smith Mfg. Co., 25 Pa.Super. 206; Climax Road Machine Co. v. Shusley, 30 Pa. C.C. 201; Citizens' Nat. Bank of Waynesburg v. Gass, 29 Pa.Super. 125.

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

OPINION

HEAD, J.

On November 22, 1905, W. P. Chubbs executed and delivered unto John B. Miller, the plaintiff, in trust for the benefit of the creditors of the former, a deed of voluntary assignment covering all of his property, real and personal, except personal property to the value of $ 300 which was reserved in the deed for the use of the grantor.

We cannot determine from the record now before us whether or not the property, the title to which was thus retained by the assignor, was specially named or designated in the deed itself. Appraisers were promptly appointed, however, and on December 2, 1905, they appraised and set apart unto the grantor the property which was then certainly identified as that which he had reserved in his deed of assignment, although the language of that instrument may have been general. The list contained but two items, viz.: " One bay horse, $ 50.00; balance due from Ella Chubbs, $ 250."

The claim to this property, first made in the deed itself perfected by the prompt application for appraisers and their official designation of what was covered by the claim, resulted in leaving the title of the assignor to that property undivested, as if the deed had never been made, or as if these particular items had been specially reserved from the operation of the deed. In Peterman's Appeal, 76 Pa. 116, Mr. Justice Williams thus describes the effect of the appraisement pursuant to a general reservation in a deed of assignment: " Is the appellant then entitled to the portion of the fund he claims? It is clear that he is, unless his right to it was divested by the deed of assignment. Whether it was or not, depends upon the construction to be given to the exception in the deed. He had the undoubted right to reserve, for the use of himself and family, property to the value of $ 300. His right to except it out of the assignment is founded on the exemption act of April 9, 1849, but his right to it as against the assignee depends upon the exception of the deed. It is true that the deed does not specify or define the property intended to be excepted, but leaves it to be selected by the assignor. But his right of selection is not confined to any particular description of property, nor is it subject to any condition whatever; and his right to the...