Souder v. Schechterly

• Decision Date: 06 October 1879
• Parties: Souder <I>versus</I> Schechterly.
• Court: Pennsylvania Supreme Court

91 Pa. 83

Souder versus Schechterly.

Supreme Court of Pennsylvania.

June 13, 1879.

October 6, 1879.

June 13th 1879.

Before SHARSWOOD, C. J., GORDON, PAXSON, TRUNKEY and STERRETT, JJ. MERCUR and WOODWARD, JJ., absent

Error to the Court of Common Pleas of Columbia county: Of May Term 1879, No. 65.

COPYRIGHT MATERIAL OMITTED

A. C. Smith, C. R. Buckalew and H. E. Smith, for plaintiff in error.—The Reighart claim took position as a debt subsequent to the conveyance, and could not raise or support the imputation of legal fraud against it. In the case of running accounts, each item of payment or credit is applied in extinguishment of the earliest items of debt standing in the account until the whole payment is exhausted. The court erred in admitting declarations of Souder, made years after the conveyance; Bump on Frauds, 2d ed., 567; Hartman v. Diller, 12 P. F. Smith 43; Tripner v. Abrahams, 11 Wright 227; Williams v. Davis, 19 P. F. Smith 21.

Charles G. Barkley and Samuel Knorr, for the defendant in error.—The least degree of concert or collusion between parties to an illegal transaction, makes the act of one the act of all, and the declarations of one may be given in evidence to affect the others: Peterson v. Speer, 5 Casey 491. A book-account is held to be but a single debt, not made up of several separate and distinct debts: Hollister v. Davis, 4 P. F. Smith 508.

Mr. Justice STERRETT delivered the opinion of the court, October 6th 1879.

The controversy in this case hinged on the validity of the voluntary conveyance of April 30th 1866, executed by William F. Souder, in favor of his wife, the plaintiff in error. The deed was assailed on the ground of actual as well as constructive fraud; and there was a verdict in favor of the plaintiff below, who claimed as purchaser at sheriff's sale under a judgment obtained in December 1873 against the administrators of Souder with notice to his widow and heirs. It may be conceded that if the deed from Souder to his wife was fraudulent, as alleged, the plaintiff below was entitled to recover.

Testimony was introduced for the purpose of proving that Souder was indebted to several persons at the date of the conveyance. It was shown that on an open account, he then owed B. F. Reighart a balance of $277; that the account ran on several years thereafter, during which there were credits and payments on account made by Souder without any specific application thereof by either party, amounting to between four and five hundred dollars. It was claimed by the plaintiff in error that in the absence of any specific appropriation of payments by the parties, the law would apply them in their order to the oldest items of the account, including those prior to April 30th 1866; that in this way the indebtedness existing at the date of the conveyance was fully extinguished, and the claim, consisting of the later items, would rank as a debt contracted subsequent to the conveyance, to which the doctrine of legal or constructive fraud, in the absence of actual fraud, would not apply. A point to this effect was submitted to the court, and in refusing the same the learned judge said: "The book-account was but one debt. The law, in the absence of any agreement of the parties, would apply the payment to the whole debt. At most, therefore, payments made after 1866, can only be considered as applicable ratably on the whole debt, the old as well as the new, consequently there would be a portion of that debt at least due in 1866. The purpose of giving in evidence the debts of 1...