Miller v. Jackson , 34 Pa. Super. 31 ( 1907 )

Opinion by

Head, J.,

On November 22, 1905, W. P. Chubbs executed and delivered unto John B. Miller, the plaintiff, in trust for the benefit of the creditors of the former, a deed of voluntary assignment covering all of his property, real and personal, except personal property to the value of $300 which was reserved in the deed for the use of the grantor.

We cannot determine from the record now before us whether or not the prope rt}r, the title to which was thus retained by the assignor, was specially named or designated in the deed itself. Appraisers were promptly appointed, however, and on December 2, 1905, they appraised and set apart unto the grantor the property which was then certainly identified as that which he had reserved in his deed of assignment, although the language of that instrument may have been general. The list contained but two items, viz.: “ One bay horse, $50.00 ; balance due from Ella Chubbs, $250.”

The claim to this property, first made in the deed itself, perfected by the prompt application for appraisers and their official designation of what was covered by the claim, resulted in leaving the title of the assignor to that property undivested, as if the deed had never been made, or as if these particular items had been specially reserved from the operation of the deed. In Peterman’s Appeal, 76 Pa. 116, Mr. Justice Williams thus describes the effect of the appraisement pursuant to a general reservation in a deed of assignment: “ Is the appellant then entitled to the portion of the fund he claims ? It is clear that he is, unless his right to it was divested by the deed of assignment. Whether it was or not, depends upon the construction to be given to the exception in the deed. He had the undoubted right to reserve, for the use of himself and familjq property to the value of $300. His right to except it out of the assignment is founded on the exemption act of April 9, 1849, but his right to it as against the assignee depends upon the exception of the deed. It is true that the deed does not specify or define the property intended to be excepted, but .leaves it to be selected by the assignor1. But his light of selection is not confined to any particular description of property, nor is it subject to any condition whatever ; and his right to the property, when selected, is as perfect as if it had been specially excepted out of the assignment.” The same principle is declared in McFarland’s Estate, 16 Pa. Superior Ct. 152. Whether, therefore, the bay horse was specially reserved in the deed, as the statement — not questioned — in the history of the case declares, or the reservation, general in the deed, was made specific by the subsequent claim and appraisement, in either event the assignee took no title to the horse as against the assignor or the defendant claiming under and through the assignor. As to the horse, the averment of the affidavit of defense was sufficient to prevent a judgment, and, as to it, the learned court below fell into error in making absolute the rule for judgment for want of a sufficient affidavit of defense. The second assignment of error must be sustained.

At the time of the execution of the deed of assignment Chubbs, the assignor, was the owner of a farm and resided on it.- He had thereon a lot of personal property, including not only the horse already referred to but the other articles named in the writ of replevin. After the deed had been delivered and recorded, to wit: on November 27, 1905, Jackson, the defendant, went to the farm, and, without the knowledge or consent of the assignee, removed therefrom the property embraced in the writ.

The Act of April 19,1901, P. L. 88, provides that a defendant who desires to contest, in court, the title to or right of possession of property replevied, must file an affidavit of defense “ setting up the facts denying the plaintiff’s title and showing his own title to said goods and chattels,” and authorizes the court to enter judgment in favor of the plaintiff “ for such goods and chattels as to which the court may adjudge the affidavit insufficient.” The sufficiency of such an affidavit must be determined by the same rules that control in other actions where like affidavits are required. It must state frankly and fairly facts that support the claim advanced; not legal conclusions or mere inferences drawn by affiant. If the claim made be one of absolute ownership whilst the supporting facts averred show, at most, but a special or qualified ownership or right of possession — such as would arise from a pledge or other form of bailment for instance — without disclosing the additional facts necessary to determine the nature, extent and duration of such special right, such an affidavit would be plainly insufficient.

Turning then to the affidavit we find first, a general averment that the chattels replevied “ are not the property of the plaintiff, but are owned by and belong to deponent as owner thereof.” This is but a conclusion, not more specific than the short plea of “property,” and, of course, valueless. Then follows an averment that the goods were delivered to deponent by Chubbs before the writ issued ; but as such, may, if delivered was made after the execution, delivery and recording of the deed of assignment, of all which Jackson had notice, it could in no way divest the title of the assignee. The only other specific averment in the affidavit, relating to the property replevied except the horse, is the following : “ That said William P. Chubbs by agreement in writing, a copy of which is hereto appended and made part hereof, agreed that said goods were the property of defendant upon the payment of a note of $400, which defendant paid. The note referred to of $400 was dated September 27,1905, due in sixty days from date. A hay press, included in said agreement, said Chubbs sold for $150 and turned the money or note over to deponent, who credited the said $150 on said $400 note.”

A careful examination of the written agreement referred to discloses no support for the averment of absolute ownership in defendant. It does not evidence an intention on the part of Chubbs to divest himself of the title to, and ownership of, the personal property therein mentioned. On the contrary, it clearly indicates that the beneficial ownership was to remain in him. No transfer of possession accompanied or followed the agreement or was intended to, but the possession remained as before, with the right of the owner to(fully use and enjoy the property without rent, service or condition except the promise that he would not “ sell or dispose of it until the sum of $400 is paid in full or without the consent of said Joseph Jackson.” We think the plain purpose of the paper was to create a chattel mortgage, a pledge of the property specified as security for the performance of the primary obligation referred to in the paper, viz.: the payment of a sum of money. But as the pledge was not completed by the delivery of the property the contract, as to this, remained executory and conditional, and the defendant could not execute it himself. The affidavit does not aver that Jackson had taken the property mentioned in the writ for the purpose of selling it and applying the proceeds to the payment of the balance of his debt, returning the surplus, if any, to Chubbs or his assignee. Indeed, he does not aver that at the time of the seizure any of the debt of $400 remained unpaid. The agreement covered a considerable amount of property not embraced in the writ of replevin, to wit: “ Ten cows, a hay press, scales, etc.” The affidavit admits that Chubbs, after the agreement, had sold the hay press, and reduced the debt $150. It does not aver this was the only sum paid. It gives no information as to what had become of the “ ten cows, scales,” etc., which were not on the farm when the deed was made, and is silent, as already observed, as to the amount of the debt, if any, still actually existing at the time of the seizure. The averment of the defendant that he was the absolute and unconditional owner of the property replevied was not, therefore, supported by the agreement. No other warrant for sucli a claim is shown. If there were any facts from which a court could determine that some qualified right of possession still existed to secure the payment of a certain sum of money, no such facts are averred. We think the learned court below was right in making absolute the rule for judgment as to all of the property embraced in the writ except the bay horse.

It is‘argued by the learned counsel for the appellant that the deed of assignment under which the plaintiff claims was a nullity, because the operation of our insolvent act of 1901 has been held to be suspended whilst the national bankrupt act of July 1, 1898, remains in force: Potts v. Smith Mfg. Co., 25 Pa. Superior Ct. 206 ; Bank v. Gass, 29 Pa. Superior Ct. 125. But the act of congress excepts from its operations certain classes of persons, viz.: wage earners and farmers, “ and as to such persons the Act of June 4, 1901, P. L. 404, is in force : ” Bank v. Gass, supra. In the present case it is averred in the plaintiff’s statement that “ W. P. Cliubbs owned and resided on a farm.” In the absence of any denial this ought to be a sufficient foundation for the assumption that he was a “ farmer,” and hence our statute would be operative. But it has not been made clear to us, nor was it to the court below, why the deed of assignment depended for its vitality on the act of 1901, or why it is not just as effective now as it would have been before the passage of that act.

As to ail property mentioned in the writ except the bay horse the judgment is affirmed; as to the horse, the judgment is reversed and a procedendo is awarded. The costs of this appeal to be paid by appellee.