Miller v. Irvine

Mr. Justice Paxson delivered the opinion of the court, The single assignment of error here is that the court below •erred'in entering judgment for the defendant upon the special verdict. It is not disputed that the sheriff’s sale passed a good title to the personal property in controversy to Kline, the purchaser at said sale. His right to leave it with the defendants in the execution is equally clear: Myers v. Harvey, 2 P. & W. 478; Craig’s Appeal, 27 P. F. Smith 448, and Maynes v. Atwater, 7 Norris 496. The judgment upon which the property was sold was confessed to Kline to secure his own debt, and sundry other debts due by the Miller Brothers, the defendants in said judgment. Kline bought the property to protect himself and the others. As to them he was a trustee. After selling a part of the property he moved out of the county and left the remainder in the hands of the Miller Brothers, under an agreement that they should sell the same'and apply the proceeds first to the payment of Kline’s claim; second to the claim of Horting, and lastly to the claim of the mother and the wives of Miller Brothers. The special verdict finds the [408] further fact “ That afterwards ware came down some,- and they (the mother and wives) agreed with the Miller Brothers to take the rest in property; if it was sold for gain, it was their gain; and if there was a loss, it was their loss. The effect of this arrangement was to make Miller Brothers the agents of Kline, the trustee, to sell the property and apply the proceeds in accordance with the trust. It passed no title to Miller Brothers. They could sell and deliver, and in doing so make good title, but it was the title of Kline, the trustee, for whom they acted as agent. There was no interest or profit reserved to them in the transaction, in which respect the case differs essentially from Dick v. Cooper, 12 Harris 217, relied upon by the court below. Nor is Heitzman v. Divil, 1 Jones 264, in point. There property of a perishable character was left with the defendant in the execution for his consumption, to be returned in kind, and not the same property. Here no portion of the property was to be retained by Miller Brothers. They had no interest in it whatever. The balance, after paying the claims of Kline and Horting, was to go to the mother and wives. We need not discuss the position assumed by the court below, that Miller Brothers could not sell the property to their wives for the reason that such a transaction would be against public policy. No such point is involved in the case. The property in controversy did not belong to them, but to Kline, the trustee. As his agent, Miller Brothers had the right to turn over the property to their wives as creditors under the trust. We are of opinion that the agreement between Kline and Miller Brothers was a bailment, and that it was error to enter judgment below for the defendant. The judgment is reversed, and judgment is now entered for the plaintiff upon the special verdict.