
    Staller v. Kirkpatrick.
    A person has a right to transfer his property by gift, and such transfer cannot be contested as a fraud on a subsequent creditor, although the transfer may have been made so that his creditors could not reach it.
    In this case, it was submitted to the jury, whether, under the evidence, there was a transfer of the possession, oí the property, which was given by a father to a son living with him, so that the son had exclusive control, as against the father.
    Where personal property is sold at a sheriff’s sale, there is no necessity for a transfer of the possession in order to pass title.
    Feb. 19, 1889.
    Error, No. 136, July T. 1881, to C. P. Schuylkill Co., to review a judgment for plaintiff on a feigned issue upon a sheriff’s interpleader, wherein James L. Kirkpatrick was plaintiff and Joshua Staller was defendant, at Sept. T. 1886, No. 32. Sterrett and Mitchell, JJ., absent.
    The property, whose ownership was involved in this issue, was levied upon by Staller, on a judgment obtained against James Kirkpatrick, father of the plaintiff. The property consisted of a stallion, a colt, a wagon, a buggy and a mowing machine, and were claimed by James L. Kirkpatrick as his own.
    The facts appear by the charge of the court, as follows, by Green, J.:
    “ The claim is made here, so far as the stallion is concerned, that there was no change in possession of the stallion from the time it was in possession of the father; that the evidence in this case shows that this stallion was sold at sheriff’s sale as the property of the father and purchased by Jacob S. Kline, of Schuylkill Haven, that he was the owner for several years and that then he sold it to the son, James L. Kirkpatrick. Now, the sale by the sheriff was, according to the return, prima facie, an open judicial sale, a notorious sale, a public sale, and in such case there was no necessity that there should be a transfer of the possession of the stallion from James Kirkpatrick over to Jacob S. Kline in order to pnt title to the property into Jacob S. Kline. Even though the stallion may have remained where it was before the sale, still Jacob S. Kline became the owner of it. [If you believe, under the evidence of this case, and it is uncontradicted, that Jacob S. Kline sold that stallion to James L. Kirkpatrick in 1881, then James L. Kirkpatrick had the same title to the stallion that Kline had, and James L. Kirkpatrick became the owner of the stallion, even though it may have remained upon the farm, which was owned by the father. We say this is according to the uncontradicted evidence in this case. Whilst it might be true that, at the time the father was in financial difficulties, creditors may have been pressing him, and that he was unable to pay his debts; that the purpose of the transfer may have been to transfer his property in such a way as that the creditors might not reach it; still, whatever fraud there may have been in transferring the property in that way, it was only a fraud- as to those who were then his creditors. A man who was no creditor at that time could make no objection to the transfer of his property. Staller, the defendant in this issue, was no creditor at that time. This transfer took place in 1881. Staller did not become a creditor until 1886, five years afterward, when judgment was entered in his favor and against Kirkpatrick for the costs; so that whatever question might have been raised in 1881, with regard to the bona fides of the transfer of this property, it certainly could not affect a man who had not any interest in the question at that time, a man who was no creditor. It did not make any difference to Staller in 1881 whether James Kirkpatrick gave to his son every dollar’s worth of property that he had, because his interests were not affected by it.] [5] The law says that only those who are affected by a fraud can take advantage of it in such a way as to set aside a fraudulent transfer of property. Therefore, we say, so far as this case is concerned, under the evidence here shown, that this stallion and this colt came into the ownership of James L. Kirkpatrick, whatever the purpose may have been in transferring or putting the property in him, and it could not be objected to by parties who made no claim against him at that time, parties, who, therefore, could not be defrauded by the transaction. We say to you, so far as the possession of this particular property, the stallion, is concerned, it having been sold at a judicial sale, there was no necessity that there should be an active possession, transfer of the .possession of the property from Kirkpatrick to Kline.
    
      “ So far as the colt is concerned, you will observe that, according to the testimony in this case, the mare, which was the mother of this colt, was never the property of James Kirkpatrick, the father, at all. The son swears he purchased the mare from Byerly in Schuylkill Haven and then put it on the farm. Even though he may have put her in the possession of the father, it did not affect the ownership of the son. If there was a change of possession from what is called the vendor, that is the seller, Byerly, over to the purchaser, who was the son, that was sufficient to make the sale a bona fide sale. Even though subsequently the purchaser of the property may have put the property into the possession of the father, it would not have the effect either of changing the title to the property or of enabling anyone, a creditor of the father, to levy on it for the payment of the father’s debts. This is all it is necessary we should say to you so far as these two items of property are concerned.
    “ Next we have the three other items of property, the buggy, the two-seated wagon and the mowing machine. As to these three articles of property, the son claims that they were given to him by the father, the consideration of the gift, or the promise connected with the gift, was that he was to have them in consideration of his putting them in repair. He swears that he received them from his father and that he did put them in repair, that he expended money upon them — upon the buggy. I think his receipts here show that he spent $30 in repairs, lie swears that, so far as the two-seated wagon was concerned, he spent, I think, he shows a receipt here of $22, and then claims that in addition to that he expended from $15 to $20 for which he has no receipt, showing an expenditure of something in the neighborhood of $40 for repairs on the wagon. He claims that the mowing machine was out of order, requiring considerable repair, and that he put repairs upon it to the extent of $12 and some cents. He claimed that this gift of property took place in 1882 and 1883, or in that neighborhood, I think. [Undoubtedly the father had a right to give what he chose to his son, and no person would have any right to complain of any gift the father might make to the son, except the father’s creditors. Staffer was no creditor at the time of these alleged gifts to the son, and would not have any right to complain, if you find, under the evidence in this case, that these goods were given to the son by the father in 1882, 1883 and 1884, prior to the time when Staffer became a creditor. The question in the case is whether these things were given, and as to that, you have the testimony which is uncontradicted of the giving of this property to the son.] [4]
    “ But the defendant in the case alleges it is true they may have been given to the son, but stiff they were not given in such a way as to make the gift a valid one; that, in order to make a gift of property, from one to another, valid, there must be a change in the possession of the property, and that the evidence in this case shows that there was no such change in the possession of the property as to make the gift a valid one, and therefore the creditors of the father would have a right to levy upon the property stiff as the property of the father. That is the question which is to be determined, under the evidence in this case. If you find, under the evidence, that there was no change in the possession of the property, that whilst there may have been a mere verbal gift of the property from the father to the son, stiff, that there was no delivery of the property from the father to the son, or if the possession of the property remained in the father just as much as in the son, if the son did not assume the exclusive control of the property, but' the father exercised the same control and authority over the property as the son did, therein, if it were a joint possession, then such a gift would not be a valid gift, so as to prevent the creditors of the father from levying upon it to answer for the fathei,’s debts. That is the question of fact for yon to dispose of, under the evidence in the case. Ordinarily, a sale or gift of personal property must be accompanied by a change of possession. If the vendor of property sells personal property to another and still retains the possession of the property, even though it may be a bona fide sale, it is considered a fraud in law. It is not considered a valid sale, and, not being a valid sale, the creditors of the father would still have a right to levy on the property to answer the father’s debts. If the property still should remain in the joint possession of the vendee and vendor, in such case it would not be a valid sale or gift of the property, to such an extent as to prevent the father’s creditors from levying on the property. Therefore, the question in this case arises, so far as these three articles of property are concerned, the buggy, the two-seated wagon and the mowing machine, whether there was a delivery of the possession of this property to the son, so that he exercised exclusive control over it. It might be that he gave permission to the father occasionally to make use of it. It does not follow necessarily, because the father may ride in a carriage, that therefore there was no change in the possession of the property. It, perhaps, becomes more a question of control and authority exercised over it than the mere question of occasional use. -In such a case as this, yon must take into consideration the situation of the parties. Both of them were living upon the same property, living upon the farm. The father was living there, and the son was living there, during the whole of this time; whilst the son was living there, the question arises as to what possession, which would be exclusive in its character, he could take of this property which had been given by his father. Must he necessarily remove the property from the farm and keep it somewhere else, in order to show the fact that he had become the exclusive owner of this property, or might he still keep the property on the farm, exercising exclusive control and authority over it, though he might occasionally allow the father to make use of it or invite him to take a seat in the carriage for the purpose of taking a drive ? That is a question the jury must take into consideration, the situation of the parties at the time, the manner in which they were living together, for the purpose of determining the question of fact, whether this property not only was given to the son, but whether it did not pass into his possession.
    
      “ One further fact to be taken into consideration here, is that a portion of this testimony would go to show that the farm, whilst it was owned by the father, was farmed by one of the sons, a brother of the plaintiff in this case, Andrew. Now if. Andrew had the possession of this property in connection with James, if they were the parties who had possession of the property, then, whatever possession Andrew might have of the property would not antagonize the ownership of James in it, or would not antagonize his possession of the property at all. It is only a question whether the father kept up a concurrent possession of this property with James. If the possession of this property was in Andrew and in James, the sons together, by reason of the fact that the son was farming the place, and therefore making use of the property, making use of the mowing machines, and using the carriage, etc., such a possession as that in Andrew would not militate against the ownership and the possession of James, the son. The only question would be whether the father retained the possession, or a portion of the possession, of this property after he had given it over to his son. If you should find, under the evidence in this case, that the father did retain possession of this property, that there was a concurrent possession and authority over this property exercised by him and the son James, then it would be liable to be levied on under this execution by the sheriff; and, as to that property, then your verdict would be in favor of defendant. If, however, you find, under what we have said to you, that this property was given to the son, and that the son had the possession, took the possession of this property, exercising control and authority over it exclusively, as against the father, then your verdict would be in favor of the plaintiff for all the property claimed in this issue. It is a question of fact for you, therefore, to determine under the evidence in this case.”
    The defendant presented the following points :
    “ 1. In .this case, the possession of the two-seated carriage, the buggy and the mowing machine being, as established by all the evidence in the case, in the concurrent possession of the old man Kirkpatrick and James, the son, the claimant in the issue, from the time of the alleged gift or sale by the old man to .the son, up to the time of levy by the sheriff, this would be fraudulent as to creditors and the verdict must be for the defendant for the property mentioned in this point. Ans. We cannot say that the uncontradicted facts are as stated in this point, and therefore we decline to affirm it, and refer to our general charge on that subject.” [1]
    
      “ 2. The evidence in this case shows no delivery of the stallion to Jacob Kline at the time of the .sheriff’s sale, but showed that it remained in the possession of James Kirkpatrick the same as before the sale, up to the time the levy was made by the sheriff for Stabler. Therefore, under this evidence, the verdict must be for the defendant. Ans. This point we decline to affirm, as we have already said to you that, it being a sheriff’s sale, open and notorious, there was no necessity for the transfer of the actual possession from Kirkpatrick to Kline in order to change the title.” [2]
    “ 3. Under all the evidence in the case, the verdict must be for the defendant for all the property in issue. Ans. This point we decline to affirm. We submit the case to you. If you find that all the property in this issue is the property of Kirkpatrick, the plaintiff, then your verdict will be in favor of the plaintiff for the property claimed. If you should find for only a portion of the property in favor of the plaintiff and a portion in favor of the defendant, then in your verdict you will say what portion you find in favor of the plaintiff.” [3]
    The evidence, relied upon by counsel for both sides, is contained in the following extracts from the evidence of the plaintiff :
    “ The mower was used by my father on the place. I boarded at home; occasionally I worked on the farm ; my brother used the mower. Father did not use it. It was kept in father’s wagon house it did the work for him upon that farm. The two-seated wagon was used by the whole family, myself as well; when we went to church we took that; I took the buggy when I went for pleasure; my father used it when he desired it; the buggy and the two-seated wagon were used by my father and me as we wished on that farm whenever we wished to use it. Q. There was nothing there to indicate to anybody that you were the owner of the horse. I mean now no indications, no signs to indicate that you were the owner ? A. Yes, sir. Q. "What was there? A. Got letters everyday. Q. I mean to the general public you had nothing there on that property to show ownership of those articles? A. Yes, sir. Q. "What was it? A. I had bills printed with my name on it, posted them all around the county. Q. As the owner of the mowing machine? A. Of the horse. Q. I am speaking of the other articles as well as the horse. Do you know why the stallion was purchased by you? A. No, sir, no more reason than that he wanted to have him in the family. I know at that time father was heavily indebted. He owed a large amount of money to the Shannons and other parties. Q. And therefore you bought this stallion at that time, in order to keep it in the family and preserve it from the creditors, keep it from the creditors ? A. I had the first chance and I suppose I got it cheaper than anybody else. Q. I know you had the first chance, but it was given you by your father ? A. No, sir. Q. That was the reason why your father requested you to buy the stallion ? A. Partly the reason; he had enough in his name then. Q, He did not want to get anymore in his name ? A. Certainly not. Q. That is on account of the incumbrances against him, on account of the liens against him, judgments against him, was it not ? A. I suppose so. Q. It was the same thing at the time the other property was handed over, when the two seated wagon was given you, he was largely indebted ? A. Yes, sir. Q. Also at the time the buggy was given you he was in the same condition? A. Yes, sir. Q. Still owed the Shannons their judgment, which was a large amount? A. Yes, 'sir. Q. And other creditors. He did not want to keep property in his name to run the risk of executions and harrassing by the sheriff, did he, if you know ? A. I do not know, I could not say; he never said any thing to me about it. Q. "Was not that the idea when he gave over the property. State what the understanding was? A. Yes. Q. That was the understanding, was it not? A. Tes, sir. Q. That this property should be given you in order that it might be free ? A. Yes, when I paid for it. Q. Might be free from execution creditors, was it not ? A. That was the understanding. Q. That was as to the two seated wagon and as to the buggy and also as to the mower, was it not, the same thing ? A. Yes, sir.”
    
      The assignments of error specified, 1-3, the answers to defendants points, quoting them; and, 4 — 5, the portions of the charge included within brackets, quoting them.
    
      W. F. Shepherd, for plaintiff in error.
    There was never any change of possession of the mower, wagon and buggy. A symbolical delivery is not sufficient. Babb v. Clemson, 10 S. & R. 419.
    Tne court was in error in leaving the question of a change of possession to the jury; there was no evidence of such a change. Hoffner v. Clark, 5 Wharton, 545; Brawn v. Keller, 43 Pa. 104; Worman v. Kramer, 13 Pa. 378.
    Where a sale of personal goods is not accompanied by a change of possession, it is a fraud, per se, as to creditors. Boyle v. Rankin, 22 Pa. 168; Clow v. Woods, 5 S. & R. 275; Babb v. Clemson, 10 S. & R. 419; Dornick v. Reichenback, 10 S. & R. 84; Young v. McClure, 2 W. & S. 150.
    If a transaction is not fraudulent as to existing creditors, it is not necessary to show special circumstances to avoid the sale; but if it is shown that it was made with a view to incurring liabilities, then the party in whose favor they have been incurred may defeat a sale made with that view. Snyder v. Christ, 39 Pa. 499; Monroe v. Smith, 79 Pa. 459; Harlan v. Maglaughlin, 90 Pa. 293.
    That a sale of chattels may be good against creditors, they must either pass to the vendee, or the vendor must pass away from them, leaving them in the exclusive possession of the vendee; and the same rule applies to a gift. Garman v. Cooper, 72 Pa. 32; Barr v. Reitz, 53 Pa. 256.
    
      D. C. Henning, not heard, for defendant in error.
    There was sufficient evidence of a change of possession and it was properly submitted to the jury.
    The doctrine laid down in Clow v. Woods, 5 S. & R. 275 has been somewhat pruned and modified by more recent decisions. Evans v. Scott, 89 Pa. 136; Cessna v. Nimick, 18 N. W. C. 66; Rothermel v. Marr, 98 Pa. 286; McClure v. Forney, 107 Pa. 414; Crawford v. Davis, 99 Pa. 576; Parks v. Smith, 94 Pa. 46; Billingsley v. White, 59 Pa. 296; McKibbin v. Martin, 64 Pa. 352; Dunlap v. Bouronville, 26 Pa. 72; Barr v. Boyles, 96 Pa. 31; Forsyth v. Matthews, 14 Pa. 100; Stull v. Weigel, 20 W. N. C. 100.
    Feb. 19, 1889.
   Per Curiam,

Judgment affirmed.  