M'Gee v. Campbell , 7 Watts 545 ( 1838 )

The opinion of the Court was delivered by

Kennedy, J.

The sale of the property in question by R. Wolverton to M’Gee, the plaintiff, was most probably made for the purpose of preventing the creditors of Wolverton from enforcing the payment of the debts due to them ; and was therefore no doubt void as against them. But it was not only good and binding as against the parties, that is, Wolverton and M’Gee, but likewise against all the rest of the world, excepting the creditors of Wolverton. Notwithstanding, however, it was void against, them, still they could not seize or take the propertjr wherever they happened to meet with or find it, unless under legal process giving and extending an authority to the place to do so. Campbell, one of the defendants, it is true, had obtained a judgment against Wolverton before a justice of the peace in Jefferson county, upon which an execution had been sued out directed to Smith, the other defendant, and was in his hands at the time that he and Campbell took the properly. But this execution did not authorize Smith to go beyond the limiisof the county to seize property under it. If he went out of the county of Jefferson, where the justice resided before whom the judgment was obtained and from whom the execution was issued, it was the same out of the county as if he had no process whatever in his hands against Wolverton. Having no authority then to take the property except in Jefferson county, it follows of course, and necessarily too, that he became a trespasser in taking it in Clearfield county. Campbell had no authority, and could not have justified himself for having touched the properly, except it had been to have assisted Smith, upon his request, in Jefferson county, had the property been found there, where Smilh himself would have been justified in taking the property by virtue of the execution in his hands. Smith and Campbell were then both trespassers here. The question next presents itself, seeing a trespass was committed, against whom or upon whose rights was it committed'? If Wolverton had not parted with his right in the property to M’Gee, it is perfectly clear that, as the owner of it, he might have maintained an action of trespass against the defendants for having taken it; but having previously sold and transferred all his right therein to the plaintiff here, it is equally clear that he could maintain no such action, because, as against him, the transfer is perfectly good and available. Upon it, if he were in the possession of it, and should attempt to withhold it from the plaintiff against his consent, the latter might recover it from him. This being the case, what is there then to prevent the plaintiff from maintaining the action'? He is invested with the same right to the property that Wolverton would have had, provided he had not sold to the plaintiff: consequently the latter may maintain this action. No plausible objection can be tríade to his doing so. For although the sale and transfer of the property by Wolverton to the plaintiff may be, and doubtless is, void against the creditors of the former, because made for the purpose or with a view to hinder, delay or defraud them in the collection of their debts, yet they have no right to meddle with or take it, unless they will come armed with the authority of the law for that purpose. The court below seem to have entertained the idea that if the sale to the plaintiff was fraudulent it was therefore void to all intents and purposes against all the world, and that no right of property whatever became vested in the plaintiff by it. This, however, is not the case, because it is good and available against every body and for every purpose, except, as against the creditors of Wolverton, and even as against them it is sufficient to protect the plaintiff in the possession and the enjoyment of it, until they shall take it by virtue of legal process suited to that end. The court below therefore erred in directing the jury that it did not alter the case, even if the property were taken by the defendants in Clearfield county; and that the plaintiff could not recover in this action, if they found the sale to the plaintiff to be fraudulent, whether the property was taken in Jefferson or Clearfield county.

Judgment reversed, and a venire de novo awarded.