Sanders v. Wagonseller

• Decision Date: 28 September 1852
• Citation: 19 Pa. 248
• Parties: Sanders <I>versus</I> Wagonseller.
• Court: Pennsylvania Supreme Court

19 Pa. 248

Sanders versus Wagonseller.

Supreme Court of Pennsylvania.

September 28, 1852.

ERROR to the Common Pleas of Union county.

COPYRIGHT MATERIAL OMITTED

Miller and Linn, for plaintiff in error.—The 24th section of the Act of 24th February, 1834, provides that no debts of a decedent, not secured by mortgage or judgment, shall remain a lien longer than five years from the decease of the debtor, unless an action be commenced and prosecuted within the five years; and the 34th section requires the heirs or devisees to be made parties within the five years, in order to bind the estate.

A conveyance by a father to his children is not fraudulent per se; the question of actual fraud is for the jury.

Pollock and Casey, contrà.—Where children continue with the father after arriving at full age, and perform labour or service without any contract, they have no legal claim for such service: 3 Rawle 243, Walker's Estate; 5 W. & Ser. 513, Candor's Appeal; 8 Barr 213, Hack v. Stewart. See also Lantz v. Frey and wife, 2 Harris 201; same case, 7 Harris.

A conveyance by a father to his sons in trust to pay judgments on record, and for the maintenance of the father's family, is fraudulent as to creditors: 2 Pa. Rep. 82; 3 Id. 83; 5 Id. 478.

Where the facts are uncontradicted and amount to a fraud in law, the question is for the Court and not for the jury: 1 Rawle 252; 5 W. & Ser. 147; 10 Ser. & R. 419; 5 Watts 485.

In regard to the question of lien, the following positions were taken: 1st. That by obtaining a judgment against the administrator of the decedent within the five years from his death, the plaintiff acquired no lien on the real estate separate and distinct from the statutory lien of the debt itself. 2d. That the only effect of the judgment was to extend the duration of the statutory lien of the debt for another period of five years, to be computed from the expiration of the first five years, during which it was a lien without a judgment; making ten years in all. 3d. That, if these positions are correct, then at any time during the continuance of the lien, it was competent to the plaintiff to make the heirs or terre tenants parties, and charge the land in their hands.

The creditor is not bound under the Act of 1834 to proceed first against the heirs; he may proceed to judgment against the representative, and then obtain judgment de terris by scire facias against the heirs: 2 Barr 112, Atherton v. Atherton; 9 W. & Ser. 13, Benner v. Phillips.

The limitation by the Act of the 24th February, 1834, of the lien of a decedent's debts to a period of five years, is extended to a period of ten years, by an action brought and judgment recovered against the personal representative alone, within the first period: 2 Harris 42, Schwartz' Estate.

The opinion of the Court, filed September 28, was delivered by LEWIS, J.

Michael Sanders, after becoming indebted to Wagonseller and others, conveyed his land to his unmarried daughters, who resided with him. The deed purported to be for the consideration of...