Brewer v. Fleming

The opinion of the court was delivered, by Agnew, J. Notwithstanding the numerous errors assigned, there are but two principal questions in this case ; the first involving the relation of Williams, Black & Co. to the land, and the — 112 — second the form of action. Fleming, the plaintiff below, brought replevin for ten thousand feet of timber cut by George Frazier for Williams, Black & Co., upon a tract of land claimed by both parties. Fleming claims as equitable owner of the land, through a purchase by Isaac Clover from Lane & Mylert in 1854; Williams, Black & Co. claim the same land, first by purchase from Fleming, and secondly by conveyance of the legal title to them from Bredin & Campbell, purchasers of Lane & Mylert’s title. But $500 having been paid on Clover’s purchase from Lane & Mylert, Campbell & Bredin were desirous to obtain payment of the balance, or put an end to the contract, and, therefore, proposed to take $3500 in full of the balance, if a good purchaser for the land could be found within a short time. J. W. Guthrie acting as agent for Fleming proposed a sale to Williams, Black & Co. at $8 per acre for the whole, which the latter accepted. The* writings consisted of two instruments, dated the 27th January 1862. In one, Guthrie as attorney of Fleming assigned to them all the estate and title of Fleming, and authorized Campbell & Bredin to convey to them on their paying to Campbell & Bredin $3500, in certain instalments. In the other, which was partly in the form of a receipt, but was subscribed by both parties, he acknowledged the receipt of $2500 upon a sale of the land, and agreed that Williams, Black & Co., who lived in Pittsburgh, should have sixty days to examine the lands, and if at the expiration of that time they did not pay the balance coming to Campbell & Bredin, and the balance to Fleming, calculating the whole land, at $8 per acre, then Fleming should refund to them the $2500 without interest within four months from date, and on failure to do so the agreement to become null and void. _ On the 10th of March following, Williams, Black & Co. made out a written notice to Guthrie that they would not take the land at the price designated, and that they expected him to refund the money paid according to the agreement. This was served on Guthrie on the 26th March 1862. In the mean time, however, Williams, Black & Co. arranged with Campbell & Bredin for the balance of the purchase-money on the Clover contract, and got from them a conveyance of the legal title. This deed bore date on the 28th February 1862, but was not finally acknowledged until the 26th of March 1862, and was recorded on that day, being the same day on which the notice was served by Williams, Black & Co. that they would not take the land under their purchase from Fleming. On the last day of the four months given to Fleming to refund the $2500 paid by Williams, Black & Co., Guthrie on his behalf tendered the money to Mr. Black. There is no evidence showing that in the mean time, or indeed at any time, Williams, Black & Co. recalled their notice, or reinstated themselves upon their contract by tendering to Fleming the balance — 113 — due him. They indeed, in the court below, raised the question as to the sufficiency of the tender to them by Guthrie ; but we discover no error in the instruction of the court upon the facts stated in the charge. Nor was there any evidence in the case which would justify the jury in finding the tender was not made in good faith, though the question was submitted to them by the judge in his answer to their sixth point. As the case stood after the notice and non-performance on one side, and the tender on the other, the purchase by Williams, Black & Co. of Fleming’s equitable title was at an end, and they were left standing in the shoes of Campbell & Bredin, and clothed only with the bare legal title, and their rights under the'Clover contract. It was in the following winter that the timber was cut by Frazier under a contract of some kind with Williams, Black & Co. Their right to authorize him to cut and take the timber depended, therefore, not on their purchase from Fleming, which was ended by their own act, but upon the right of Campbell & Bredin under the contract of sale by Lane & Mylert to Clover. If Clover had been let into possession, or had the right to enter under his contract and take possession, his vendors Lane & Mylert and their assigns had no right to enter to cut timber. As holders of the legal title they were trustees of it for Clover the vendee, who, by the equitable conversion created by the sale, was the equitable owner of the estate, and entitled to its fruits: Longwell v. Bentler, 11 Harris 102 ; Siter, James & Co.’s Appeal, 2 Casey 180 ; Morgan v. Scott, Id. 51. Their right was simply to enforce payment of the purchase-money in the proper legal form; and if they entered upon the vendee after letting him into a possession or covenanting to do so, they were liable to restore the possession without a tender of the balance of the purchase-money: Basler v. Niesly, 2 S. & R. 352; Harris v. Bell, 10 Id. 39; D’Arras v. Keyser, 2 Casey 252. The relation of Williams, Black & Co. to the land must therefore be determined by the contract of sale to Clover. This it appears was given in evidence by Fleming. But no copy of this paper is spread upon our paper-book, no point was made upon its terms at the trial, and no exception taken to that portion of the charge of the court in which the jury were told that as purchasers under Campbell & Bredin, Williams, Black & Co. had no right to enter upon the land and take off the timber. In this- state of the record, the presumption is that the terms of Clover’s contract justified the court in charging in answer to the plaintiff’s second point, that the right of possession remained in Fleming at the time the timber was cut by the defendant. Exception was taken, it is true, to the answer to this point, but it is- grounded, not upon the terms of Clover’s article, but upon the effect of Fleming’s sale to Williams, Black & Co. This will be seen both in the terms of — 114 — the point itself, and the argument founded upon the assignment of error to this answer, the eighth, and also upon the sixth assignment of error. In the argument it is contended that the election of Williams, Black & Co. to refuse the land under their contract was not a complete rescission; because, it is said, the language of Fleming’s assignment was a present conveyance, which authorized them to take a title from Campbell & Bredin instanter, and to use it as a security for the $2500 to be refunded by him in case they refused to take the property. But this is a blending of things essentially different. Admitting that they might purchase the legal title of Campbell & Bredin; and, if it were possible, use it to secure the money paid by them on their purchase of Fleming; what right, in law or equity, remained to them in Fleming’s equitable estate, after they had expressly refused to take it, or to pay for it at the expiration of the sixty days, and after his tender of a return of the money they had paid him, without any recall of their refusal in the mean time or any attempt at performance ? Their contract with him was at an end. It was not a mere rescission of it by subsequent agreement, but it contained within itself the terms of its own dissolution. They had sixty days to repent in, and they did so. When they gave notice of this; failed to pay at the end of the time, and Fleming, accepting their own construction of the contract, tendered a return of the money; clearly all the force of the contract was spent, all rights of purchase under it ceased, and Williams, Black & Co. fell back upon the bare legal title: and even the right to use it to enforce payment of money actually tendered to and refused by them, differs essentially from a right to the equitable estate of Fleming, which alone could carry with it the right to the timber. It is the right to the possession of the land when the timber was cut, this being an action of replevin, which is the point to be established, and not the enforcement of the payment of the purchase-money, or how much should be tendered under the Clover contract. If Fleming’s equitable estate was not in them when the timber was cut and removed, but remained in him by their disaffirmance of the sale and his tender of the return of their money, they had no title to the timber ; and this is the only question. To what extent Williams, Black & Co. can use the legal title is not a question 'here ; though it may be seriously questioned how far it can be held as á security beyond the sum of $3500 actually paid, or se'eured to be paid, to Campbell & Bredin. Campbell & Bredin’s offer to reduce the sum due to that amount, and to give one and two years for its payment, was not made to them or for their benefit, and they only secured the position they hold by using their contract with Fleming. After disaffirmance and the tender of the money, can they in equity use the legal — 115 — title to compel payment of more than the $3500 ? Of this we give no opinion. As the case stands in the record, the right of possession under the Clover contract being in Fleming, the contract of sale being ended by the act of the defendants, and the timber being cut afterwards, the entry of Frazier to cut it was a trespass, and the right to the timber vested in Fleming. A mere temporary occupancy, for the purpose of talcing off timber, by one having no right of possession, is not such an actual possession as defeats the constructive possession which the law casts upon the owner: Harlan v. Harlan, 8 Harris 507 — referring to Wright v. Guyer, 9 Watts 172, and Elliott v. Powell, 10 Watts 454. See also Sorber v. Williams, 10 Watts 140; Hole v. Rittenhouse, 1 Wright 116; Washebaugh v. Entriken, 10 Casey 74. Nor does such an entry and cutting of timber defeat the owner’s right to it, but as soon as it is severed from the freehold, his right of property vests in it: Id. See also the late cases of Clement v. Wright, 4 Wright 254, and Altemose v. Hufsmith, 9 Id. 128. In this state of the case replevin for the timber was not improper. The case is not ruled by Mather v. Trinity Church, 3 S. & R. 509 ; Baker v. Howell, 6 Id. 476 ; Brown v. Caldwell, 10 Id. 114, and Powell v. Smith, 2 Watts 127. According to the authority of these cases, neither trover nor replevin lies against one in the actual possession of land claiming title for timber, slate, or other products severed by him from the freehold, nor even when there is a common possession, and the title is in controversy. But it does lie in favour of the owner, in possession actually or constructively against a tortfeasor or one who has no right of possession, who enters only casually or temporarily to cut timber: Wright v. Guyer, 9 Watts 172; Elliott v. Powell, 10 Id. 454; Harlan v. Harlan, 3 Harris 509 ; Clement v. Wright, 4 Wright 250, and the analogous case of Altemose v. Hufsmith, 9 Id. 121. This view of the relation of Williams, Black & Co. to the land in effect disposes of all the errors assigned, except the third and fourth. Fleming’s ownership of the timber, as the equitable owner of the land, renders it unnecessary to call to his aid the assignment of the timber to him by F. B. Guthrie, the owner of the tax title, and therefore all the errors arising upon that branch of the case become immaterial. So also the questions upon the rights of Williams, Black & Co., under the purchase of the legal title, are out of the case, for they belong to a different controversy, to be settled when they undertake to enforce their rights under the Clover contract. As to the third error assigned to the rejection of a portion of the testimony of James Craig, Esq., it is only necessary to say that it did the defendants no injury. Why Fleming objected to it, it is difficult to say, for it tended to prove more directly that — 116 — the motive of Williams, Black & Co. in procuring the title from Campbell & Bredin, was not performance of the contract with Fleming, but security for the money paid to him. This was a strong corroboration of their intention to disaffirm the contract, as it was only in that event security was needed. The fourth assignment of error is also without foundation, for the fact that Fleming employed Coogan to show Williams, Black & Co. only the better portions of the land when examining it, if it was a fraud,could only result in relief from their purchase ; and this they had of themselves, by their higher right of disaffirmance of the contract by virtue of its own terms. In this action the fraud' was irrelevant, therefore, as a ground of relief from a contract already ended by their own act. Finding nothing on the record to correct, the judgment is affirmed.