Reinheimer v. Hemingway

• Court: United States State Supreme Court of Pennsylvania
• Writing for the Court: Strong
• Citation: 35 Pa. 432
• Decision Date: 01 January 1860
• Parties: Reinheimer versus Hemingway.

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35 Pa. 432 Reinheimer versus Hemingway. Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Northampton county.

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COPYRIGHT MATERIAL OMITTED

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H. D. Maxwell and A. E. Brown, for the plaintiff in error.— By the sheriff's sale of the interest of Duffin in the firm of Duffin, Cortright & Co. the plaintiff acquired no interest in the partnership property, but simply a right to an account: Deal v. Bogue, 8 Harris 233; Taylor v. Fields, 4 Ves. 349; S. C. 15 Id. 559, n.; Doner v. Stauffer, 1 Penn. R. 198; Kramer v. Arthurs, 7 Barr 165; 1 Story's Eq. p. 626-7; 1 Wend. 211; 2 Id. 553; 16 Johns. 102; 4 Ves. 396.

The sale by Duffin to Hemingway was fraudulent per se, because made to hinder, delay, and defraud creditors: Passmore v.

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Eldridge, 12 S. & R. 198; Hart v. McFarland, 1 Harris 185; Ridgeway v. Underwood, 4 W. C. C. R. 136-7; Clow v. Woods, 5 S. & R. 275; Young v. McClure, 2 W. & S. 147; McBride v. McClelland, 6 Id. 94; Forsyth v. Matthews, 2 Harris 100; Hetrick v. Campbell, Id. 263; Born v. Shaw, 5 Casey 288.

In replevin, all the joint owners of a chattel must join: Morris on Replevin 72; 2 Saund. 116, n. 2; 15 Johns. 479; 6 Mass. 422; 9 Id. 427; 4 Mason 515. The plea of property does not admit the plaintiff's right to sue, nor is it necessary that the objection should be taken by plea in abatement: Seibert v. McHenry, 6 Watts 301, 303; Gilbert on Replevin 127-8; Clemson v. Davidson, 5 Binn. 399; Cullum v. Bevans, 6 Har. & Johns. 469; Wilson v. Gray, 8 Watts 25; Harrison v. McIntosh, 1 Johns. 380; Rogers v. Arnold, 12 Wend. 30; Harrison v. Dix, 12 M. & W. 146; Prosser v. Woodward, 21 Wend. 205; Chambers v. Hunt, 3 Harr. (N. J.) 339; Marsh v. Pier, 4 Rawle 273, 283.

Reeder & Green and C. & M. Goepp, for the defendant in error.—The knowledge of Hemingway of the issuing of the execution did not render the sale fraudulent in law; the purpose for which it was made, and the intention of the parties in making it, were matters of fact to be decided by the jury. And the court properly submitted them to the jury, with instructions that if the intention of the parties was to keep them from sale under the execution, it was fraudulent in fact. No decision can be produced that a sale made after execution issued against the vendor, is fraudulent in law.

By the purchase at sheriff's sale of Duffin's interest in the firm of Duffin, Cortright & Sullivan, the plaintiff became, as against all the world, except Cortright and Sullivan, tenant in common with Cortright and Sullivan, of all the personal property of the firm within the county. And having property and the right of possession, as against everybody but Cortright and Sullivan, he can maintain replevin.

It is true that, in replevin, all the joint owners of a chattel must join; but the non-joinder must be pleaded in abatement: Hart v. Fitzgerald, 2 Mass. 511; 6 Id. 422.

The opinion of the court was delivered by STRONG, J.

The plaintiff claimed title to the mares, first, as a purchaser from Henry B. Duffin, at a private sale made on the 28th or 29th of May 1855; and, secondly, as a purchaser at sheriff's sale, under an execution levied upon the interest of Duffin in a copartnership formed between Duffin, Cortright & Sullivan. The execution was issued and placed in the sheriff's hands on the same day on which the private sale was made, and the sale under it was effected on the 21st of June 1855. It was

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contended by the defendant below, that the private sale, made by Duffin to the plaintiff, was fraudulent and void, having been designed to hinder, delay, and defraud creditors, and the court was asked to instruct the jury, that inasmuch as it was made after the delivery of the execution to the sheriff, it was a fraud in law, if it was then known to Hemingway, that the execution was in the officer's hands. This instruction the court declined to give, and, while declining, remarked that "the execution of Mulford & Reeves (that then held by the sheriff) bound the interest of Duffin in any personal property in the county, and any sale made by Duffin would be subject to its lien, but it did not make a sale fraudulent per se, which was not fraudulent in fact."

Passing by, for the present, the inquiry whether the defendant was entitled to an affirmative answer to the point propounded, it seems incredible that the jury were not misled by what the court did say, when it is considered with reference to the facts in evidence in the cause. Duffin was largely in debt and apparently insolvent. Executions against him were returned unsatisfied. The private sale was made immediately after a messenger had brought notice to Duffin that an execution had been issued. Then the debtor had no right to sell the mares. True, his sale could not discharge them from the lien of the execution, but it tended to hinder and delay the creditors. It must have been made with such a purpose in view. If Hemingway knew, at that time, that an execution against Duffin was then held by the sheriff, he also knew that Duffin had no right to sell; and, in purchasing, he was aiding the vendor in his unlawful purpose. Now, while it is true, that in all questions of actual fraud, the intention of the parties is for the jury to determine, it is equally true, that they have a right to the whole evidence from which to draw their inferences. The knowledge of Hemingway that an execution against Duffin was in the sheriff's hands, was a most pregnant fact, certainly, almost, if not...