Werner v. Zierfuss

• Citation: 29 A. 737,162 Pa.St. 360
• Parties: WERNER v. ZIERFUSS.
• Decision Date: 11 July 1894
• Court: United States State Supreme Court of Pennsylvania

29 A. 737
162 Pa.St. 360

WERNER
v.
ZIERFUSS.

Supreme Court of Pennsylvania.

July 11, 1894.

Appeal from court of common pleas, Northempton county; H. J. Reeder, Judge.

Fi. fa. in debt against Joseph E. Gross on issues awarded against Hulda Zierfuss, plaintiff, on petition of S. & J. Werner. Verdict and judgment for petitioners. Plaintiff appeals. Affirmed.

H. C. Cope, J. B. Kemerer, and Henry W. Scott, for appellant. B. F. McAfee and W. S. Kirkpatrick, for appellees.

MITCHELL, J. It was said by Chief Justice Black in Covanhovan v. Hart, 21 Pa. St. 495, the leading case in this state on conveyances in fraud of creditors, that "if a debtor, with the purpose to cheat his creditors, converts his land into money because money is more easily shuffled out of sight then land, he commits a gross fraud," and if the purchaser, knowing his object, assists in it, "his title is worthless against the creditors, although he may have paid a full price." In such case the intent to cheat, common to both parties, enters into the whole transaction, and makes it fraudulent from the beginning. But, as the chief justice continues, "the rule is different when property is taken for a debt. One creditor of a failing debtor is not bound to take care of another. It cannot be said that one is defrauded by the payment of another. In such cases, if the assets are not large enough to pay all, somebody must suffer. It is a race in which it is impossible for every one to be foremost. He who has the advantage, whether he gets it by the preference of the debtor, or by his own superior vigilance, is entitled to what he wins, provided he takes no more then his honest due." To the same effect are Uhler v. Maulfair, 23 Pa. St. 481; Bank v. Carter, 38 Pa. St. 446; Walker v. Bank, 98 Pa. St, 574; and Banking Co. v. Fuller, 110 Pa. St. 156, 1 Atl. 731; and it may be considered as the established result of our cases that if a creditor takes a judgment, or conveyance, or payment in any form, to secure an actual debt, the transaction will be valid against other creditors, although he knew (1) that the effect would be to postpone the others; (2) that the debtor intended it to have that effect; and (3) although he took it to aid that intent, as well as to protect himself. The criterion is not the effect, but the fraudulent intent. Without that the transaction cannot be impeached. A corollary of the foregoing rule is that where there is an actual debt the jury cannot be permitted to infer a...