Boyer v. Weimer , 204 Pa. 295 ( 1903 )

Opinion by

Mb,. Justice Fell,

Apparently there was much merit in the defense, but the case was submitted to the jury on grounds that are untenable. The real estate for which ejectment was brought was conveyed in January, 1895, by Annie D. Keck to Savilla Allison, who in March, 1900, conveyed it to Henry Boyer, the plaintiff. In December, 1895, more than eleven months after Mrs. Keck had parted with her title, a judgment was obtained against her, and in September, 1897, the real estate was sold by the sheriff, under proceedings under the judgment, as her property. The defendant was the purchaser at the sheriff’s sale, and obtained possession of the property from the tenant who occupied it.

It will b'e seen that the plaintiff had a perfect record title. The defendant had none as the judgment under which the sale was made was not a lien. The defendant, therefore, could succeed only by showing that both of the transfers, by which the title was vested in the plaintiff, were collusive and fraudulent. He succeeded in showing circumstances connected with the transfer from Mrs. Keck to Savilla Allison that cast doubt on the good faith of the parties to that transfer; but there was not a word of competent testimony that tended to impeach the conveyance to the plaintiff. As the case stood at the close of the testimony, the plaintiff was entitled to a peremptory direction in his favor.

The court, however, instructed the jury that if the transfer by Mrs. Keck was made not in good faith but for the purpose of defrauding her creditors, it was void, and that Savilla Allison acquired no title and had none to convey to the plaintiff, whose only remedy, if he was misled, was by an action on a warranty in the deed to recover back the purchase money. This is not the law. It is true that as against creditors defrauded, Savilla Allison’s title was invalid, if she had notice or knowledge of the fraud of her grantor, but the title of the plaintiff could be impeached only by proof of notice affecting him or of his knowledge of the fraud. Bona fide purchasers from a fraudulent grantor are protected by the statute of 13 Elizabeth, ch. 5, and it is a settled rule that the protection extends to a purchaser from a fraudulent grantee: Hood v. Fahnestock, 8 Watts, 489. The deed of a fraudulent grantor is not a nullity nor ineffective to divest his title as against the paramount interest of a bona fide purchaser.

As the case goes back for trial, the exceptions to the admission of declarations made by Mrs. Keck after she had parted with the title, require notice. The general rule that the declarations of a grantor made after the execution of a grant cannot be used to impeach it, has been so far modified that when the good faith of a transfer has been attacked by creditors and some evidence has been advanced to show a common purpose or design by the parties to hinder, delay or defraud creditors, subsequent declarations by the grantor are admissible: Hartman v. Diller, 62 Pa. 37; Souder v. Schechterly, 91 Pa. 83. The vital question in this case was whether the plaintiff had notice or knowledge of a fraud on the creditors of Mrs. Keck. Until there was some testimony tending to show knowledge on his part, the testimony objected to was inadmissible. As the record of the trial then stood, there was nothing to impeach his good faith as a purchaser for value, and the testimony should have been excluded.

The suggestion in the charge that if Savilla Allison was a married woman at the time of her transfer to the plaintiff, she still held the title, as her deed was ineffective without the joinder of her husband, was not warranted by the testimony, even were it competent for a third party to question the conveyance on that ground.

To what extent the possession of the defendant was notice to the plaintiff when he acquired title, and whether the burden was on the plaintiff after notice to prove the payment of the purchase money, are matters not raised by the exceptions, and do not at this time call for decision.

The judgment is reversed and a venire facias de novo awarded.