Zuver v. Clark

• Decision Date: 12 November 1883
• Citation: 104 Pa. 222
• Parties: Zuver <I>versus</I> Clark.
• Court: Pennsylvania Supreme Court

Page 222

104 Pa. 222

Zuver versus Clark.

Supreme Court of Pennsylvania.

October 8, 1884.

November 12, 1883.

October 8th 1884.

Before GORDON, TRUNKEY, STERRETT, GREEN and CLARK, JJ. MERCUR, C. J., and PAXSON, J., absent

ERROR to the Court of Common Pleas of Lawrence county: Of October and November Term 1883, No. 114.

COPYRIGHT MATERIAL OMITTED

Martin (with whom was Gardner), for the plaintiff in error, produced the original bond and fi. fa., to show the alleged forgery. A sale of improved land on writ of fi. fa. without waiver of inquisition by the defendant in the writ, or owner of the land is absolutely void: Baird v. Lent, 8 Watts 422; Wolf v. Payne, 11 Casey 97; Gardner v. Sisk, 4 P. F. Smith 506; St. Bartholomew's Church v. Wood, 11 P. F. Smith 103. Waiver of inquisition is a matter of proof, and the burden was on the plaintiff in the ejectment to show a good title in herself. The court ruled that no one but the defendant in the writ could set up the want of waiver of inquisition, but Wolf v. Payne, supra, shows that the owner of the land has that right. The defendant should therefore have been permitted to show the waiver to be a forgery. George E. Zuver is the son of Samuel Zuver, and holds land from him by descent, so that he was bound by the covenants of general warranty in his father's deed: De Chaumont v. Forsythe, 2 P. & W. 507; Whithill v. Gotwalt, 3 P. & W. 313. Being thus incompetent as a witness by common law, he is not rendered competent by the Act of 1869: Arthurs v. King, 3 Norris 525; Karns v. Tanner, 16 P. F. Smith 297. Samuel Zuver advised, counseled and acquiesced in the alleged fraudulent conveyance, and cannot now impeach the title so granted, by alleging that his own debt was not secured, and the transfer was in fraud of some other creditor: French v. Mehan, 6 P. F. Smith 286; Davidson v. Little, 10 Harris 245; Monroe v. Smith, 29 P. F. Smith 459.

D. B. Kurtz, (with whom was E. T. Kurtz and McMichael & McConnell), for defendant in error.—This was a voluntary conveyance, made to defraud and hinder creditors, and vested no title as against them. The title in Joseph Zuver was divested by the sheriff's sale, which vested the title in the purchaser, through whom defendant in error claims. Nancy Zuver sets up an outstanding title in Joseph Zuver, to be successful in which she must show his title to be valid as against the plaintiff: Hunter v. Cochran, 3 Barr 105; Riland v. Eckert, 11 Harris 215; Bear Valley Coal Company v. Dewart, 14 Norris 72; Green v. Scarlett, 3 Grant 228. Now, Joseph Zuver abandoned the possession and acquiesced in all the proceedings. He is estopped from setting up the want of waiver, which can only be taken advantage of by the defendant in the execution, and by him only within a reasonable time: Wray v. Miller, 8 Harris 111; Crawford v. Boyer, 2 Harris 380; Christy v. Brien, 2 Harris 248. Mrs. Clark, the plaintiff, had at least the possession of the premises in 1881, and that is sufficient alone, as against Nancy Zuver, who was a mere intruder: Foster v. McDivit, 9 Watts 341; Foust v. Ross, 1 W. & S. 501; Fisher v. Philadelphia, 25 P. F. Smith 392; Espey v. Lane, 2 S. & R. 52. When the objection to an offer is a general one, if any part of the testimony is admissible there is no error in overruling the objection: Robinson v. Buck, 21 P. F. Smith 386; Laubach v. Laubach, 23 P. F. Smith 387; Philadelphia v. Leidy, 10 Barr 45.

Mr. Justice TRUNKEY delivered the opinion of the court, November 12th 1883.

As against every body, except persons intended to be defrauded, the deed by McCready to Nancy Zuver vested a good title in her for the land in controversy. Joseph Zuver was as completely divested of title as if the conveyance had been made to his wife in good faith for a full consideration in money; and if void as to his creditors, yet the title was changed, and a sheriff's sale upon a judgment obtained against Joseph Zuver after the delivery of the deed would be subject to liens which existed at and before the date of delivery. A sheriff's deed would pass to the purchaser all that was conveyed to the fraudulent grantee, and as such grantee took subject to liens, if any, the purchaser at sheriff's sale would take upon the same terms. Lien creditors are not included among persons who may be defrauded by the conveyance of land, for they may follow the land irrespective of all changes in the title, honest or dishonest: Byrod's Appeal, 31 Pa. St. 241; Fisher's Appeal, 33 Id. 294. But the deed being void as to the defrauded creditors, as regards them, it is still their debtor's estate which is sold in satisfaction of their debts, and the purchaser obtains the right to contest and avoid the conveyance: Hoffman's Appeal, 44 Pa. St. 95; Jacoby's Appeal, 67 Id. 434. Should a surplus remain after paying the debts, it would belong to the grantee, for the grantee's title only fails so far as it stands in the way of the creditors.

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