Jones v. Shaw , 8 Pa. Super. 487 ( 1898 )

Opinion by

Rice, P. J.,

This was an action of replevin for four horses. The defendant pleaded property. It appeared on the trial that in August, 1895, the plaintiff, — he being then the owner, and the horses being in the possession of Clark Pettit in the state of New Jersey, — executed and delivered to the defendant a bill of sale under seal. This paper was put in evidence during the presentation of the plaintiff’s case, and as the record does not affirmatively show that it was offered in evidence by the defendant we cannot say that he had debarred himself from moving for a nonsuit by injecting his defense into the plaintiff’s case. If there was any mistake in the stenographic report of the trial it should have been corrected before the record was brought here.

Taking the record as we find it, it appeared in the plaintiff’s case that the title and the possession were in the defendant at the time the writ issued. To rebut this prima facie evidence of title the plaintiff then offered to prove that there was no delivery of the horses under the bill of sale; that while, ostensibly, the consideration for the transfer was the payment of $700 in cash, for which the plaintiff gave his receipt, and the cancelation of an antecedent indebtedness of $500, represented by the plaintiff’s note to the defendant dated June 1, 1895, no cash was paid, and there was 'no consideration for the note; in short that the whole transaction was a fraudulent scheme to prevent a certain creditor of the plaintiff, who threatened suit, from levying upon the horses, in case he obtained judgment.

As to the allegation that there was no actual delivery under the bill of sale there are two complete answers: First, the court offered to receive evidence of the fact but the plaintiff did not see fit to avail himself of the offer; second, the property being in the bands of a bailee, actual manual delivery was not necessary in order to transfer the title. As to the other branch of the offer it is sufficient to say, that while the bill of sale was fraudulent and void as to the plaintiff’s creditors, it was nevertheless good between the parties, at least to the extent of precluding the plaintiff from invoking the assistance of the courts to recover the property from the vendee. “It is settled by numerous decisions that there is no more binding consideration known to the law than the mutual fraud of the parties. The books are full of cases wdiere a party to the fraud has sought relief in the courts from the consequence of his unlawful act, but the decisions have been uniformly adverse to such applications. It is not the province of the law to help a rogue out of his toils : ” Winton v. Freeman, 102 Pa. 366; Harbaugh v. Butner, 148 Pa. 273. But, saj^s the plaintiff, “the defendant agreed at the time of the execution of the bill of sale to return the horses to me whenever I should demand them; they were subsequently returned to me ” (he does not say by whom), “ and remained in my exclusive possession until possession was retaken by the defendant.” Unquestionably, if there was a rescission of the sale, the defendant could not retake possession of the horses and set up the bill of sale as a defense to this action. But the facts stated in the offer are insufficient to warrant a finding that there was. a rescission.

The secret agreement to return the horses was, evidently, a part of the fraudulent scheme whereby the plaintiff was to have all the benefits of ownership while Ms creditors were to be kept at bay by putting and keepmg the title in the defendant. This feature of the transaction does not prevent the application of the principle to wMch we have referred. Assuming that the plaintiff had proved all that he offered to prove — and owing to the irregular manner in which the case was tried we must assume this — the fact remains that at the time the writ of replevin issued the possession was in the defendant under a title which the plaintiff could not impeach without alleging his own fraud. The rule of law in such cases is to leave the parties where it finds them. The rule is founded upon the highest considerations of public policy and its enforcement is calculated to make men honest in their dealings, uot only as between themselves, but in respect to the absent, the dependent and the ignorant : Evans v. Dravo, 24 Pa. 62; Winton v. Freenaan, supra.

The regular mode of procedure would have been to rule upon the plaintiff’s offers of evidence. But the manner in which we have considered the case renders tins irregularity immaterial. Upon the case as presented by the plaintiff in his evidence and his offers of evidence he was not entitled to recover.

The judgment is affirmed.