Rockwell v. Saunders

By the Court, Hand, P. J. It was admitted, upon the trial that the property had been replevied and the demand is, for judgment against the defendants for the possession of the property, and that they be adjudged to pay to the plaintiff damages to the amount of $2000, and interest and costs; and yet the judgment is for the value of the property as assessed by the jury. This is probably a mistake, but the record is clearly erroneous. It is said the court of appeals has decided, in a case not yet reported, that a judgment for the defendant, in the action of replevin, must, under the code, be in the alternative ; and probably the same rule will be held applicable to a judgment for the plaintiff. But if the property has been replevied and delivered to the plaintiff, he should not be permitted to elect to take judgment for the value. If it had been competent for the plaintiffs to show title to the land out of Bancker, I think it would have been no answer that the deed to Whillis had been set aside after the logs had been taken from the lot; if taken by a bona fide purchaser from a bona fide purchaser at the sheriff’s sale. And the judgment in favor of the McNiels, for costs, was valid as to them, and they had a right to issue an execution thereon. But if the attorney on the record, of Bancker, knew the terms of the agency, and that his father was to pay the costs, and yet procured execution to be issued, and the land to be sold for the sum of $30, and — 480 — conveyed for his own benefit and without giving information to Bancker, and in fraud of his rights, I do not see how he could set up that title as against his client. But the plaintiff showed no title derived from Brotherson or Whillis; and indeed, it would have been fatal to him to have shown title in a third person. Besides, Bancker was the source of the title they claim to set up. And it does not appear that Whillis ever interposed in the matter at all; nor does Brotherson pretend that Ralph held under him after the latter took a contract from Bancker on the 9th of May, 1848. Under all the circumstances, therefore, the learned judge decided correctly, that Ralph and all persons holding under him were estopped from denying the title of Bancker. This they could not do, unless they could show imposition, or a misapprehension of the rights of the parties, in making the contract. (Jackson v. Spear, 7 Wend. 401. Jackson v. Miller, 6 id. 228.) The defendants evidently had no title when they took the lumber, nor when the suit was commenced. Months before they obtained title to the land, the logs had been carried away and sawed into boards. The drawing of the logs was completed in the latter part of March, 1851, and probably they were all cut and drawn off the lot before the death of Gf. W. Bancker, and consequently, Evart A. Bancker, ■ their grantor and the heir of Gf. W. B., never owned them. They became personal estate, by the severance. (2 Seld. 293. 2 R. S. 82, § 6. 4 Bl. 233. 2 Russ, on Cr. 63. 7 Taunt. 191.) If the logs and lumber were the property of George W. Bancker at his death, no one had a right to take them except his administrator; in whom, on his appointment, the property became vested by relation, from the instant of the death of his intestate. (Toll. Ex. 152. Valentine v. Jackson, 9 Wend. 302. Babcock v. Booth, 2 Hill, 184. Priest v. Watkins, id. 225. 2 R. S. 449, § 17. Id. 81, § 69. 18 Vin. 285. Morgan v. Thomas, 8 Exch. 302. Foster v. Bates, 12 M. & W. 225. Tharpe v. Stallwood, 5 M. & G. 760.) And he may bring trespass for unlawfully taking the goods of the intestate after his death and before administration granted, or trover for their conversion. (Id.) In — 481 — Tharpe v. Stallwood, the subject was thoroughly discussed. And an administrator may also maintain an action for a trespass committed on the real estate, or for taking and carrying away the goods of the intestate in his lifetime. (2 R. S. 114, § 4, 5. Id. 447, § 1. And see 1 Saund. R. 217, n. b,f 6th ed.) Though the administrator could not bring trespass for an injury" to the freehold at common law. (Emerson v. Emerson, 1 Ventr. 187; S. C. 11 Vin. 127. Toll. Ex. 160, 436. And see 4 Co. 62, 3; 11 id. 82.) If the title to the property was in the administrator of Bancker, the plaintiffs must fail. The pleadings were amended so as to allow the defendants to show title in the administrator. That title has no relation back, so as to take away any vested right, or make one a trespasser by relation, where the act complained of was lawful at the time. (Tharpe v. Stallwood, supra.) But if the plaintiffs had no legal title or lawful possession, but had taken possession wrongfully, as soon as administration was granted, their possession became tortious ab initia. And it is sufficient for the defense, that the property was in the administrator. Property in a stranger has always been a good plea in replevin without connecting the defendant with such title. (Ingraham v. Hammond, 1 Hill, 353, and the cases there cited. Anstice v. Holmes, 3 Den. 244. McKnight v. Dunlop, 4. Barb. 41) If the judge who delivered the opinion in Rogers v. Arnold, (12 Wend. 30,) intended to lay down a different rule, the dictum was not only obiter, but I believe is not supported by a single reported case. (Presgrave v. Saund, 1 Salk. 5. 5. C. Holt, 562. Butcher v. Porter, 1 Salk. 94. Wildman v. North, 2 Lev. 92. Bacon’s case, Cro. Eliz. 475.) The title of the plaintiff is in issue; and he must have the general or a special property and a right to possession. (Pattison v. Adams, 7 Hill, 126. Chancellor, in Miller v. Adsit, 16 Wend. 344. Harrison v. McIntosh, 1 John. 380. Co. Litt. 145 b. 1 Ch. Pl. 146. 2 Sel. N. P. 364. Wilk. on Rep. 48. Code, § 207.) The anonymous action given by the code to recover the possession of personal property, is in this respect substantially what the action of replevin was under the revised statutes. He — 482 — must be the owner, or lawfully entitled to the possession by virtue of a special property therein, in order to obtain delivery {Code § 207.) Had the plaintiff, as against Bancker or his administrator, the-general or special property 1 The logs were probably all cut and drawn in the lifetime of Bancker. His contract with Ralph did not, in terms, authorize the latter even to occupy the lot. And it expressly prohibited him from cutting timber, &c. except upon a condition which was never fulfilled. Such prohibition was unnecessary, for a contract to convey gives no license to cut the timber. (Suffern v. Townsend, 9 John. 35. Cooper v. Stower, Id. 331. Mooers v. Wait, 3 Wend. 104.) And Bancker, and after his death his administrator, could have trespass quare clausum fregit against Ralph or any one under him for cutting the timber, in his lifetime. (Suffern v. Townsend, supra. Cooper v. Stower, supra. 2 R. S. 114, § 4, 5.) And the trespasser would obtain no title, to the property cut and carried away, if or could he convey any as against Bancker or his representative, at least while the property remained in specie and could be identified. In Mooers v. Wait, the vendee and lessee sold standing trees to A. who cut them into logs and removed and sold them to the defendant, who was held liable in trover for the logs. In Farrant v. Thompson, (5 B. &. 826,) fixtures were severed by the tenant and sold on an execution against him, and traver was sustained against the purchaser. {And see Higginson v. York, 5 Mass. R. 341. Hoffman v. Carow, 22 Wend. 294. Williams v. Chapin, 11 Id. 80. 2 Saund. R. 47 b, n. g. Dyer v. Pearson, 3 B. & C. 42. Loeschman v. Machín, 2 Stark. R. 311.) ' The charge therefore, that Bancker was con-1 fined to his action against Ralph, if the plaintiff purchased without knowing of his contract, was erroneous. Indeed, that rule can hardly apply to real estate, although, for some purposes possession is prima facie evidence of title as against a wrong-1 doer. (Smith v. Lorillard, 10 John. 339. Jackson v. Harder, 4 id. 202.) The mode of conveyance of real property in — 483 — connection with our system of registry gives great facilities for ascertaining the true owner. (See 2 Hill, on Mortgages, 213.) But it is contended that if the plaintiffs purchased the logs in good faith, and paid for and sawed them into boards, in the . belief that the person of whom they purchased was the owner, they are at most, only liable to the real owner for the value of the logs; and by this accession, and alteration of the article, they have acquired title to the property in its present state; especially, unless they took the logs from the lot. In Farrant v. Thompson, supra, the defendant must have had knowledge of, and in a measure, probably, was accessory to, the original severance. The property was demanded while still in logs, in Mooers v. Wait, supra. In Brown v. Sax, (7 Cow. 95.) Betts v. Lee, (5 John. 348;) and Curtis v. Groat, (6 id. 168,) the labor was bestowed by the wrongdoers. And in Silsbury v. McCoon, (3 Comst. 379,) the distinction between an innocent holder and a wrongdoer, was recognized and enforced. I had supposed however, that the change in the article in such cases in its shape, or nature, must be so complete that the property could not well be identified; or it must be changed from personality into realty; as grapes into wine, olives into oil, grain into whiskey or malt, or timber into a house, &c., or that the original be comparatively of little value. And that felling and hewing trees into timber, or making logs into boards, &c. was not sufficient alone to divest 'the true owner of his title. (Year book, 5 H. 7, fol. 15, Betts v. Lee, supra. Baker v. Wheeler, 8 Wend. 505. Anon. Moor’s R. 20.18 Vin. 69. See Putnam v. Ritchie, 6 Paige, 390. Domat, p. 1, b. 3, T. 7, § 2, art. 15.) And that, though altered in form, if what remains is the principal part of the substance, the title is unchanged, and the property will not be divested by a purchase from one having no title. (Moor, 22. And see Ely v. Ehle, 3 Comst. 506 ; Morgan v. Varick, 8 Wend. 587.) However, I understand my brethren think that if the plaintiffs did not take the logs from the land, but purchased them in good faith, and sawed them into lumber, believing they were their own property, the defendants had no right to take the property from them. And, perhaps — 484 — since the case of Silsbury v. McCoon, where the form is changed and the value is materially enhanced by the labor of the possessor, the criterion is, whether it was due in good faith, rather than whether the property can be identified. But however that may be, we agree that there must be a new trial, for the reasons already stated. [Franklin General Term, September 4, 1854. Hand, Cady, C. L. Allen and James, Justices.] Judgment reversed and new trial ordered, with costs to abide the event.