Seylar v. Carson

• Citation: 69 Pa. 81
• Court: United States State Supreme Court of Pennsylvania
• Decision Date: 13 May 1872
• Parties: Seylar <I>versus</I> Carson <I>et al.</I>

Page 81

69 Pa. 81

Seylar versus Carson et al.

Supreme Court of Pennsylvania.

May 9, 1871.

May 13, 1872.

May 9th 1871.

Before THOMPSON, C. J., AGNEW, SHARSWOOD and WILLIAMS, JJ.

Error to the Court of Common Pleas of Franklin county: No. 79, to May Term 1871.

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J. McD. Sharpe, with whom was F. M. Kimmell, for plaintiff in error.—As to the 3d assignment. No title passed to Carson by sheriff's sale, by reason of his fraud there, and Seylar could recover without offering to reimburse him: Hogg v. Wilkins, 1 Grant 68; Sharp v. Long, 4 Casey 434; Jackson v. Summerville, 1 Harris 370; Gilbert v. Hoffman, 2 Watts 66; McClurg v. Lecky, 3 Penna. R. 94; Riddle v. Murphy, 7 S. & R. 236; Sands v. Codwise, 4 Johns. R. 536; Smull v. Jones, 1 W. & S 128. As to the 4th assignment: the sale being void it could not be confirmed: Duncan v. McCullough, 4 S. & R. 482; Chamberlain v. McClurg, 8 W. & S. 31; Goepp's Appeal, 3 Harris 421; Miller's Appeal, 6 Casey, 478; Butler v. Haskell, 4 Dessaussure's R. 707; Fillman v. Divirs, 7 Casey 429; Bennett v. Fulmer, 13 Wright 156.

Stewart & Kennedy and J. Cessna, for defendants in error.— The fraud which will make a purchaser at sheriff's sale a trustee ex maleficio of the debtor, must be a fraud committed at the time of the sale: Pearsoll v. Chapin, 8 Wright 11; Kellum v. Smith, 9 Casey 164; Maul v. Rider, 1 P. F. Smith 385; Beegle v. Wentz, 5 Id. 374; Load v. Green, 15 M. & W. 216; Clark v. Dickson, 1 E., B. & E. 148; Garland v. Spencer, 46 Maine 528; Babcock v. Case, 11 P. F. Smith 427; Smith's Leading Cases 334; Adler v. Fenton, 24 Howard 407; Stevens v. Hyde, 32 Barbour 171.

The opinion of the court was delivered, May 13th 1872, by WILLIAMS, J.

The evidence set out in the bills of exception, constituting the first two specifications of error, was properly received. If it was not admissible for the purpose of showing the plaintiff's confirmation of the sale to Carson — a point presently to be considered — it was competent as tending to rebut the evidence given by the plaintiff to establish the fraud with which Carson was charged, and to corroborate and strengthen the defendant's evidence in disproof of the charge. The plaintiff's acceptance of the lease was an implied admission that the land belonged to Carson and McNaughton, and that he had no title to it as owner; and the defence of a subsequently acquired title, which he set up under oath to defeat these proceedings against him under the Landlord and Tenant Act, was inconsistent with the title under which he claimed to recover the property in this action. The evidence, therefore, had a direct bearing on the question at issue, and was properly allowed to go to the jury.

But the court should have affirmed the plaintiff's third point without qualification. If Carson was guilty of the alleged fraud in the purchase of the property, then, whether the sale was absolutely or relatively void, it was not necessary for the plaintiff, as the authorities show, to pay or tender him the purchase-money which he paid for the property before bringing suit for its recovery: Gilbert v. Hoffman, 2 Watts 66; Smull v. Jones, 1 W. & S. 128; Jackson v. Summerville, 1 Harris 359; McCaskey v. Graff, 11 Id. 321; Hogg v. Wilkins, 1 Grant 67; Sharp v. Long & Brady, 4 Casey 433. It was therefore error to instruct the jury that "there must have been payment or an offer to pay" in order to enable the plaintiff to maintain the action; and the error is repeated in the general charge, and pervades the answer to the plaintiff's fourth point. But the answer to this point is complained of on another ground, which it is proper that we should consider, as the cause goes back for a new trial. The point, in the form it was put, is objectionable and the court was not bound to answer it specifically. It asked the court in effect to determine both the facts and the law of the case, and could not have been affirmed without a binding direction to the jury. It was their province to determine what acts or declarations of the plaintiff were proved in the case, and if specific instructions were desired upon the facts which the evidence tended to establish, they should have been hypothetically stated, and the court asked to declare the law arising upon them if found by the jury to be true. If, then, the plaintiff was not entitled to a specific affirmance of the point as presented, was there any error, other than that already suggested, in the general answer that was given to it? The court instructed the jury in substance that if there was actual fraud in the sale which rendered Carson a trustee ex maleficio for the plaintiff, the latter might still, by his subsequent acts and declarations, confirm the sale; and if he acquiesced in Carson's title and took a lease from him, he is barred; but if he went in under Carson on the agreement that the rent was to be applied to the interest of the purchase-money paid by Carson, and the excess over the interest to the reduction of the principal, then his tenancy was not inconsistent with his claim, and does not prove any abandonment of it. Whether this instruction is to be regarded as erroneous or not, depends on the view to be taken of the sale, if Carson was guilty of the alleged fraud. If the sale was absolutely void to all intents and purposes, if no title whatever passed by the sheriff's deed, if it remained in the plaintiff after the sale as before, and the same as if no deed had been executed, as declared in Sands v. Codwise, 4 Johns. 536, and in Gilbert v. Hoffman, 2 Watts 66, and kindred cases, then it follows that the sale was incapable of being confirmed by any acts or declarations of the plaintiff, and that no title could pass to the sheriff's vendees without a contract founded on a new and sufficient consideration and so far executed as to take it out of the statute of frauds: Jackson v. Summerville, 1 Harris 359.

But if the sale was not absolutely, but only relatively void, then, as ruled in Piersoll v. Chapin, 8 Wright 9, it was capable of being ratified and confirmed without a new contract founded on a new consideration. And it seems to us that this is the more reasonable and better opinion, and that the true distinction is there taken between contracts absolutely void and those which are relatively void or voidable. The principle on which the distinction rests, seems to be this: that is absolutely void which the law...