Seeley v. Garey

Mr. Justice Trunkey delivered the opinion of the court, On April 21st, 1880, by articles of agreement with Smull Brothers, Seeley purchased a tract of land with right to take possession immediately. The vendors reserved all the “sawing timber” in case the vendee should fail to manufacture the same on said land as provided by the agreement. Seeley agreed to manufacture at least fifteen hundred thousand per year, to pay seventy-five cents per thousand, to be applied on tliepurehase money of the land, and upon such payment then the title to said lumber to vest in him with right to remove it from the premises. Also he was bound to peel and deliver hemlock bark to the vendors, in each year, a portion of its value to be credited on said purchase money. Seeley took possession of the land, built a saw-mill, cut a part of the hemlock trees and peeled the bark, and began the manufacture of lumber. On October 7th, 1880, he agreed to sell to Jordan “all tlie sawing timber” on said land, with right to enter “to get said timber as fast and when the same has been peeled,” and not to take any timber from any part of the land “ only where the hemlock has been peeled,” for which Jordan agreed to pay 87,000; Seeley reserved the hemlock and birch bark and obligated himself to peel about two thousand eords of bark per year. It was agreed that for certain non-performance by Jordan the agreement should become void at the option of Seeley, and then he eould “ resume possession of the mill and premises and have the rights to treat Jordan as tenant holding over after the expiration of a lease.” This agreement contains no provision that upon the contract becoming void Jordan shall lose his right to the timber already cut; nor is bo prohibited from removing the timber already cut, at any timo before or after the contract may be declared void. The logs and lumber in controversy are part of the timber which was cut and peeled by Seeley before the making of the contract, and possession of said timber was delivered to Jordan who held it until taken in execution by the sheriff. At- the making of the contract Jordan paid 8600 on. the pur [310] chase money, and made the next six payménts of $ 100 each on the stipulated dates. He carried on the manufacture of lumber until August, 1881, when he failed. Soon after, Seeley gave notice to Jordan that because of his non-performance, his rights under the contract had ceased and the contract had become void. Thereupon Seeley took possession of the realty and Jordan went out — apparently there was no dispute respecting the right of the one to enter and the duty of the other to leave. Prior to said notice, by virtue of divers executions, the sheriff had levied on the personal property of Jordan, and Smull Brothers notified the sheriff that they claimed the timber, logs and mill. On petition of the sheriff a rule was granted on the claimants to appear and maintain or relinquish their claim to the property levied upon; afterwards an issue was ordered and Page, grantee of the Smulls, and Seeley were permitted to join as plaintiffs in the issue. The claimants gave bond to the sheriff and thereby acquired a right of possession to the personal property levied upon, until the issue should be determined. When that issue was tried and judgment entered against him, such right instantly ceased. Then the sheriff could take and sell the propertjq if so required by the plaintiff in the execution. If the writ was stajmd, or levy abandoned, the real owner of the property had right of possession. Had the sheriff demanded the property for sale by virtue of his writ, in case of non-delivery the claimants would have been liable for its value. Upon abandonment of the levy, the false claim that had been set up against the execution-plaintiff would not be a defence against the owner in an action for recovery of his property. The issue in the interpleader was between the claimants of the property and the plaintiffs in the executions, and its determination settled that the claimants had no title that would prevent the execution-plaintiff from seizing and selling the property in satisfaction of their judgments against Jordan. But Jordan was not a party in the issue, and against him the plaintiffs might have had a valid title. Frequently a debtor may have good title to personal property as respects the right of his creditor to seize the same in execution, but no title as against a person with whom he has a contract respecting such property. For instance, a sale and delivery of personal property, with an agreement that the ownership shall remain in the vendor until the purchase money is paid, enables creditors of the vendee to seize and sell the same in payment of their debts ; but the contract may be valid between the parties, and in default of payment by the vendee as he agreed he shall have no right of property or possession against the vendor. Hence, it is nec [311] essaryto ascertain if Jordan had title as against the claimants, for Garey purchased tho lumber at private sale from Jordan, after fuli knowledge of the alleged title of Smull Brothers and their grantee. Garey did not purchase at a judicial sale ; nor did he purchase from Jordan without knowledge of'the adverse claim. If Jordan was the absolute owner of the property he liad a right to sell it, and the purchaser by discharging the lien of the levy on Pomeroy’s execution, had right to immediate possession. The sale of'the timber in controversy by Seeley to Jordan was absolute, and in no event was Jordan’s title to be abrogated. Jordan purchased without knowledge of the agreement between Smull Brothers and Seeley. This timber was personalty in the possession of Seeley who had been and was at the time of the sale by him to Jordan, manufacturing and disposing of it as his own. It was not the duty of Jordan to inquire of Smull Brothers if Seeley had title. Upon the uncontroverted facts, proved by both Seeley and Jordan, in connection with the written contract, the court rightly instructed the jury that “The delivery of the possession of the said sawing timber already cut down and peeled by Seeley in accordance with the terms of the contract, conveyed to Jordan the absolute ownership of the timber which was then down and so delivered by Seeley to him.” Nor was there any question of the fact that Garey had acquired Jordan’s title to the timber, and an assignment of Pomeroy’s judgment, before he issued the writs, in replevin. Having become the owner of that judgment and also of tho property levied upon, there was no occasion for a judicial sale — he had right to recover the property or its value. Conceding that the testimony referred to in the first and second specifications of error was improperly received for the purposes for which it was offered, its admission did no hurt to the defendant. So far as concerns this case it is immaterial whether Seeley made an election of remedy under his contract with Jordan, for the timber in controversy was vested in Jordan. And although the record in the issue may not have determined whether Jordan owned the property as against the, plaintiffs in that issue, the ease was finally put on tho true ground, namely, the sale and delivery of the timber to Jordan vested in him absolute title. The sixth assignment is not sustained. As the ease stood it was no matter whether Seeley gave notice of forfeiture to Jordan, or whether he ordered his writ to be returned before the giving of such notice. Therefore, we express no opinion upon the ruling that parol testimony that Seeley ordered the sheriff to return the execution before the 13th day of September, 1881, was inadmissible on the ground that it contradicted [312] the record' which set forth nothing that the sheriff did, except as follows : I return this writ. We deem it unnecessary to specialty note any of the other specifications of error. Judgment affirmed.