Grover & Baker Sewing Machine Co. v. Radcliff

Alvey, C. J., delivered the opinion of the Court. This is an attachment on warrant against non-resident defendants, founded on a judgment rendered in the Court of Common Pleas for the County of Chester, in the State ⁴⁹⁸ of Pennsylvania, for $3000. The attachment was laid upon two parcels of land, and the parties in possession were returned as garnishees. One of the parties thus, returned, Radcliff, appeared and filed several pleas in hehalf of the defendants in the attachment; the first of which was, that there was no record of the recovery pf the judgment sued on; second, that the Court in which the judgment was rendered had no jurisdiction of the defendants named therein; third, that the judgment sued on was obtained by fraud.

How these several pleas were disposed of in the Court helow, the very meagre and imperfect record before us does not disclose. Suffice it to say, however, that no question on these pleas is before this Court on this Appeal, nor is there any question raised, either by plea or motion, as to the nature or effect of the judgment sued on. There was a fourth plea interposed by the garnishee, to the effect that the parcels of land mentioned in the sheriff’s return, as having been seized as the property of the defendants in the attachment, were not the property of such defendants, or either of them, and that they had no right, title or estate therein, at the time the attachment was issued. It was upon this plea alone, according to the bill of exception, that the trial was had in the Court below, and that trial, under an instruction of the Court, resulted in a verdict and judgment for the defendant, the garnishee.

The judgment sued on was rendered on the 3d of January, 1874, against James Benge and John Benge, on a bond to the plaintiff in the penalty of $3000, dated tbe 16th of March, 1872, with collateral condition, that James Benge should well and truly account to and secure the plaintiff, in respect to all credit and dealings between them, therein specified. The bond contained a power of attorney for the confession of a judgment thereon, for the full sum mentioned in the bond ; and it was by virtue of this power, according to the recitals, that the judgment was entered. ⁴⁹⁹ It appears that execution was issued upon this judgment in Pennsylvania, hut it does not distinctly appear how much money was realized on the execution. It appears that, at the date of the bond, and also of the judgment thereon, John Benge owned and possessed the two parcels of land seized by the sheriff under the attachment. But subsequently, that is to say, on the 26th of June, 1874, John Benge conveyed these parcels of land to Thomas W. Strahorn, for the recited consideration of $4000, which he, at sundry times theretofore, had “received from his wife, Mary A. Benge, the same being money and the proceeds of the sale of property belonging to her in her own right,” and, according to the recital, he was “desirous of securing the same to his said wife.” The deed then, in consideration of the recited premises, and of the sum of five dollars, conveyed the parcels of land to the grantee in fee simple, “for the use and benefit of the said Mary A. Benge, and with full power and authority to convey the same directly to her the said Mary A. Benge, her heirs and assigns, forever.” In pursuance of this power, Strahorn, the grantee, on the 30th of June, 18Y4, conveyed the property directly to Mrs. Benge, and, in the deed, the previous deed from John Benge is referred to and the objects of it recited.

Afterwards, that is to say, on the 5th of July, 1881, John Benge and wife, by their joint deed, conveyed one parcel of the property embraced in the deed to Mrs. Benge, to Ellen Barber, a daughter of the grantors, in consideration of natural love and affection, and of five dollars; and on the 1st of Sept., 1881, the same grantors conveyed another part of‘the land conveyed to Mrs. Benge, to another daughter, Ann M. Rad-cliff, wife of William Radcliff, the garnishee, for the recited consideration of $5000, and the assumption of a mortgage of $800. According to the bill of exception, there was no other evidence offered, and these several con ⁵⁰⁰ vey anees were simply allowed to speak for themselves, and the case, was made to depend exclusively upon their legal effect. The plaintiff offered several propositions for instruction, as to the effect of these deeds, hut most if not all of them were in an abstract form, and therefore objectionable. All the propositions offered by the plaintiff were rejected, and the Court, at the instance of the defendant garnishee, Radcliff, instructed the jury, “that the consideration expressed in the deed from John Benge to Thomas Strahorn, and from Strahorn to Mary A. Benge (if the jury believe said deeds were executed), is a good and valuable consideration, and that the deeds themselves are prima facie proof that the consideration therein expressed is true and bonafide\ and if the jury find that the consideration in said deeds was true and bona fide, they must find for the defendant; and the Court further instructs the jury, that there is no evidence in this case that the consideration was not true as expressed in said deeds, and that said deeds were not executed in good faith.” It was to the granting of this instruction, and the refusal of the Court to grant the prayers of the plaintiff generally, that the exception was taken.

This Court is of opinion that the instruction granted is clearly erroneous. It has long since been- the settled law of this State, that the