Rule to set aside service of writ. The act does not say "where the party The grounds for the rule are given in resides at the time the insurance is effect the Court's opinion. V. K. Keesey for rule. July 2, 1883. WICKES, P.J. The company defendant was incorporated under the laws of this State, and has its principal office at the city of Allentown, in Lehigh County. Suit has been instituted by the plaintiff in this county, and we are asked to set aside the service of the writ. The admitted facts disclose that Louisa Rousch resided in the Borough of York at the time the company's certificate of insurance was issued upon her life, to wit, on August 29th, 1878. That she assigned the said certificate of membership to the plaintiff on the 16th of September, 1878, who was at that time, and continues to be a resident of this county. That on the 28th day of November, 1879, Louisa Rousch moved to the city of Baltimore, in the State of Maryland, and resided there until her death, which occurred October 28th, 1882. Suit was brought in this county, and the writ directed to the sheriff of Lehigh County, and returned served by him, under the supposed authority of the acts of Assembly, approved April 24, 1857, (P. L. 318,) and its supplement of April 8, 1868, (P. L. 70.) The original act permitted suit to be brought "in any county where the property insured may be located, and to direct any process to the sheriff of either of the counties of this commonwealth.” The supplement of 1868 declares that all the provisions of the former act "shall apply to life and accident insurance companies." To say in the act of 1857 that suit may be brought in the county where the property insured is located is tantamount to saying in any county where the property insured is destroyed, and hence the location of the property destroyed would determine the jurisdiction in which suit could be brought. ed," nor does the place of assignment or the place of residence of the assignee settle the jurisdiction. In the first act it is the location of the property destroyed, for then only does the right of action accrue, and in the supplement it is as we have said, and, for the same reason, where life becomes extinct or the accident occurs. This view of the acts of assembly does not, we think, conflict with the decisions of the Supreme Court in Quinn v. Fidelity Beneficial Society and Spangler v. Penn. Aid Society, 4 YORK LEGAL RECORD 33 and 34; 12 W. N. C. 311 and 312. In the latter case it is said "the insurance was effected in York County-the subject of the risk died there," indicating that something more is necessary than a residence in the county at the time the certificate of membership is issued. Certainly in the absence of an assignment, her legal representatives living in Baltimore, and sueing in this State, could not select this forum, but would be required to sue in Lehigh-why then should the assignee, whose rights are derived directly through the insured, enjoy a more extended privilege in this regard. We think the service of this writ must be set aside. Vendor and Vendee--Change of possession.-A change of location of the property is not essentially necessary. If the purchase was in good faith and for a valuable consideration, followed by acts intended to transfer the possession as well as the title, and the vendee assumed such control of the property as to reasonably indicate a change of ownership, the delivery of possession cannot, as matter of law, be held insufficient-13 Pittsburgh Legal Journal 453 · Blue, Green and Gray are the names of three merchants doing business in the Bowery, New York, within a block of each other. YORK LEGAL RECORD. for which they received credit on the plaintiffs' books. VOL. IV. THURSDAY, JULY 12, 1883. No. 19. COMMON PLEAS. Thomas, Chambers & Co. v. Everhart & Co. Sale -Personal Property--Change of Possession. J. & Co., being indebted to T., C. & Co., sold to them a powder car, with the understanding, however, that J. & Co. were to have the use of it by paying switch charges and a certain sum per year. The car was removed from the switch upon which it was standing, to another. Seven or eight days thereafter the car was used by J. & Co., and afterwards; and finally, while so used, was attached and sold as the property of the said J.& Co. HELD, in an action of replevin, brought by T., C. & Co. against the purchaser at the constable's sale, that the plaintiff could not recover. The removal of the car from one switch to another, was a sufficient change of possession to vest the property in the plaintiff. The agreement that J. & Co. were to have the use of the car by paying "the switch rent, repairs and $18 per year," was such a qualification of the plaintiffs' possession as to render the sale fraudulent in law. The possession of the car by the plaintiffs was not so continued as to make it available to them against the claims of the creditors of J. & Co. The report of the Referee in this case, (Hon. Thomas E. Cochran, now deceas ed,) although never excepted to, and therefore not confirmed by any judicial action thereon, is nevertheless so decisive of the question involved, that, upon request, we have given it place in our col umns. The suit was replevin, brought by the plaintiff for one four-wheeled house car of the alleged value of $354.00, claimed by the plaintiffs to belong to them. The defendants claimed property, gave bond to the Sheriff, and retained possession of the car. A. N. Green for plaintiff. Blackford & Stewart for defendant. The Referee's report is in substance as follows: First. On the 5th day of September, 1870, Jacob Johnson and Milton S. Johnson, then partners in the business of manufacturing powder, were indebted to Thomas, Chambers and Co., the plaintiffs in this suit, and on that day sold to said plaintiffs the car, which is the subject of the present action, in part settlement of that indebtedness, for the sum of $300, Second. That Jacob Johnson was the member of the firm of M. S. Johnson & Co., who conducted this transaction with the plaintiffs, and that at the time when the sale was made, it was the understanding that M. S. Johnson & Co. were to have the use of the car on paying for it—it was so stated at the time the plaintiffs bought the car-that Jacob Johnson said that he was to have the use of it according to agreement, and that Mr. Holland, one of the plaintiffs, with whom the sale and purchase of the car was negotiated, said that Johnson should have the use of the car by paying for it. Accordingly, either at the time of the transaction above referred to, or in a short time afterwards the terms on which M. S Johnson & Co. were to have the use of the car, and the amount of "rent" to be paid by them was definitely settled and agreed upon between Jacob Johnson and the plaintiffs. The car was never used by the plaintiffs; but having been constructed for the special purpose of transporting powder, was used by M. S. Johnson & Co. until the dissolution of that firm in 1872 or 1873, when M. S. Johnson went to Chambersburg and went out of partnership, and afterwards by Jacob Johnson until its sale under execution as hereinafter mentioned. Third. That the day after the sale of the car by M. S. Johnson and Co., to the plaintiffs, Thomas G. Cross, Esq., the clerk of the plaintiffs, gave directions, in compliance with their instructions, to have the car removed from the switch of Geo. A. Barnitz, to which it was locked by a chain around the wheel, to the switch of John M. Brown, a short distance from Barnitz's, and the removal was made by some employee of the Northern Central Railway Company with whose track both switches were connected, where the car was seen two or three days afterwards, and was then in the possession of the plaintiffs. Fourth. That on the 16th day of July, 1874, the car, being in the possession of Jacob Johnson and in the county of Balti more and State of Maryland, process of attachment was issued by Henry Weir, a Justice of the Peace of said county, on the oath of one Jarrett Cole, representing that Jacob Johnson was indebted to the affiant in the sum of $13.36, and was not a resident of, and did not reside in the State of Maryland. Similar proceedings were had at the instance of Pleasant Hunton, on the 15th, and Thomas J. Hunton on the 18th day of the same month and year, for $70.62 and $14.89 respectively. Joseph W. Nelson, the constable, to whom the writs of attachment at the suits of Jarrett Cole On and Pleasant Hunton were issued, returned that he had "levied on the rights and titles of the said Jacob Johnson in and unto one powder car and contents." the 15th of August, 1874, the justice entered judgment of condemnation of the property attached as of the goods and chattels and effects of Jacob Johnson, defendant, and on the 18th day of the same month and year, issued an execution to the same constable commanding him to sell the attached property, including the car in controversy in this case, to the defendants who paid the amount of the pur chase money to the officers, and received possession of the car. Fifth. That the value of the case at the time of the sale of the Constable to the defendants on the 31st day of August, 1874, was $175.00. The facts thus found constitute, as I believe the material facts in the car, as proved and necessary to its determination. The plaintiffs contend that they establish such a sale by M. S. Johnson and & Co. to them as will protect the property from levy and sale at the suit of creditors of M. S. Johnson & Co., or Jacob JohnThe defendants deny this contention of the plaintiffs, and insist that the property, being in the possession of Jacob Johnson, at the time of its attachment, son. levy, condemnation, execution and sale to them under legal process in Maryland, their possession and title to the car are good and available in law against the plaintiff's claim. The first question that seems to suggest itself is, was the sale by M. S. Johnson & Co. to the plaintiffs on the 5th day of September 1870, attended or followed within a reasonable time thereafter, with an open, complete and actual possession of the property? If it was not, the sale was not valid against creditors. The evidence seems clearly to establish the fact that such posIt is said session of the car was taken. that "the delivery must be actual, and such as the nature of the property of the thing sold, and the circumstances of the sale, will reasonably admit, and such as the vendor is capable of making;" Billingsly v. White, 9 P. F. Smith 464; McMarlin v. English, 24 P. F. Smith 300; McKibben v. Martin, 14 P. F. Smith 352. case the subject of the sale was a railroad It could not be removed from the track for use in any other way; it was car. In this fitted only for transportation by rail. The very next day after the sale steps were taken for its removal from Barnitz's switch, to which it was fastened by chains, to Brown's switch, some distance -not far off; where it remained, and the plaintiffs had it under their dominion and control. If there had been no arrangements between buyer and seller at the time of purchase and sale to qualify the rights of the purchasers, and if the possession had been continued in them, I have no doubt that the transfer of possession would have been effectual. The second inquiry that arises is, was there any stipulation connected with the purchase and sale of the car, by which the vendors retained a beneficial interest in the property for their own interest or advantage? At the very time of the sale, according to the testimony of the plaintiff's witnesses, it was agreed be tween the parties that M. H. Johnson and Co., and Jacob Johnson should have the right to use the car by paying for it, and in accordance with that agreement, in about a week or ten days we find the car in their use and possession. The purchasers never used it—it was used only by the vendors. The testimony of Jacob Johnson, a witness called by the plaintiffs, and the one who effected the sale to them, or one part of it, was-"we were to keep the car, and pay them $18 a year, the switch rent and repairs." It was a powder car, exactly adapted to the uses of the uses of the firm of M. S. Johnson and Co., and of Jacob Johnson, who were manufacturers of powder. They had an advantage in thus bargaining for the use of the car, as is evident from Johnson's studied reference to it, when after the transaction was closed, he and M. Holland went to the plaintiff's clerk and told him of the sale. Johnson then said "he Iwould have to have the use of the car according to the agreement." Was not this a reservation of the property for the use and benefit of the vendors? "It was part of the transaction and contemporaneous with its consumation." It qualified the delivery of the possession of the car to the plaintiffs with such stipulations in favor of the vendors, as to render "the sale, whether fraudulent in part or not, clearly fraudulent in law, because there was no such change of possession as the law requires in order to render a sale valid as against creditors: "Bentz v. Rockey, 19 P. F. Smith 71. A third inquiry that arises is, was the possession of the car taken by the plain tiffs so continued as to make it available to them against the claims of creditors of M. S. Johnson and Jacob Johnson. We find it back in the hands of the vendors in a short time. Johnson testified that he took the first load of powder in that car after the 6th of September, some six, seven, eight or ten days, to Hagerstown or Chambersburg. In Miller v. Garman, 19 P. F. Smith, 134, the Supreme Court said "But in this case before us, the possession taken by the plaintiff was not exclusive. At the most it was only concurrent, and it continued but seven or eight days, and was then surrendered, when the vendor had the exclusive possession and carried on the business just as he did before the sale; and if the possession for the seven or eight days succeeding the sale had been conclusive, instead of covenant, it would not have vested the title in the plaintiff because the possession was then surrendered to the vendor. Change of possession must not only be actual, but it must be continued in order to render a sale valid as against the vendor's creditors." In Webster v. Peck, 3ì Conn. 495, cited in Davis v. Bigler, 12 P. F. Smith 242, this doctrine is stated: "Where the vendor of a horse within a week after the sale hired him of the vendor and was using him to all appearance as his own in the same manner as before the sale, it was held a restoration of the possession." See also Twine's Case, and notes, 1 Smith's Leading cases, Part 1, beginning on page 34, and especially page 77. The possession of personal property is always a leading index of ownership; and if not real, tends to give a false credit, and to lead to the perpetration of frauds upon innocent parties. In the present case, the possession by the vendees was not so continued as to make the sale valid against the creditors of the vendors. As Jacob Johnson continued in possession of the property after the dissolution of the firm of M. S. Johnson & Co., his creditors could seize and sell it in satisfaction of his debts. The defendants' counsel submitted to the undersigned in writing and requested him to answer in like manner three several points, which are attached to this report. I answer that the said points are all correct propositions of law, and, referring to the views above expressed, also that so far as they are applicable to the facts of this case, they are correctly stated. notorious as against the vendor, i e, the property must either pass from the I deem it unnecessary to give distinct and detailed answers to each, as the above re-seller to the buyer, or the seller must pass port sufficiently defines my views of the law of the case applicable to its special facts, and particular answers to the points would consist of mere repetition of what I have already said. On the views which I entertain of the facts and law of this case, I am of the opinion that the plaintiffs have no cause of action, and do, therefore render my award in favor of the defendants. The defendants points were as follows: Ist. If Johnson, the alleged vendor of the plaintiffs, sold to plaintiffs the car in question, but retained possession of said car, and continued to use it as before said alleged sale, the transaction as a sale was fraudulent and void as against the creditors of the vendor of the plaintiffs, although no actual fraud was intended by the parties, and the plaintiffs are not entitled to recover in this suit: Garman v. Cooper, 22 Smith 32. 2d. If Johnson, the vendor of the plaintiffs, actually sold the car in question to the plaintiffs; and if at the time of the sale, or within a reasonable time thereafter, the plaintiffs took possession of the said car, and within a few days subsequently re-delivered said car to their vendor, Johnson, and Johnson continued, after such redelivery to him, to use said car as his own, and his name remained upon the car, as before such sale to plaintiffs, the sale as between the creditors of Johnson and his vendees was fraudulent, and the plaintiffs are not entitled to recover in this suit : Garman v. Cooper, 22 Smi. 32. Davis & Pugh v. Bigler & Son, 12 Smi. 242. 3rd. That to constitute a valid sale of personal property as against creditors of a vendor there must be an open, complete and actual possession of the property taken by the vendee at the time of, or within a reasonable time after the sale, which possession must be continued and away from the property leaving it in the possession of the buyer: Garman v. Cooper, 22 Smi. 32. Worman v. Kramer, 23 Smi. 385. Davis v. Bigler, 12 Smi. 246. Barr v. Reitz, 3 Smi. 256. [This case reminds us of another of a somewhat similar nature, in which Wm. Hay, Esq., now deceased. (and law partner of Mr. Cochran) was Referee. That was the case of Tochterman v. Adams Express Company, 1 YORK Legal ReCORD 165. The goods of the plaintiff, John Tochterman, Jr., were attached in Maryland and sold as the property of John Tochterman (plaintiff's father.) The Adams Express Company were served as garnishees in the attachment, but failed to appear. They notified plaintiff of the attachment, but misinformed him regarding the time within which to attend to the matter, and when he arrived at Baltimore the goods were sold. He brought suit against the company, and the Referee found for the plaintiff. Abstracts of Recent Decisions. (Cases not otherwise designated are Supreme Court cases.) Justice of the Peace--Set-off-Two suits.--Suit was brought before a justice of the peace for the price of a barrel of coal oil, and judgment given for the full amount of the claim. The defendant had complained before suit that there was a therefor, before another justice, who gave leakage, and subsequently brought suit judgment in his favor. HELD, on certiorari, that the proceedings before the second justice must be reversed, as the demand should have been presented as a set-off in the first suit.-Armstrong v. Johnson, (Chester C. P.) 2 Chester County Re ports 64. VERNON, the star route juror who was seized with fits, some said delirium tremens, in the court room, has fallen heir to a large sum of money. |