29 Me. 277 | Me. | 1849
To have maintained their action, the plaintiffs must have satisfied the jury from the evidence, that they were the joint owners of a part or of the whole of the property replevied. Evidence was introduced by them tending to prove, that Stephen H. Dyer, one of the plaintiffs, paid the sum of fifteen dollars, to redeem a cow, which Isaac Dyer had owned and mortgaged to one Dennett to secure a debt which he owed; that this cow and the sum of three dollars was given in exchange for another to one Dunn; by whom the money for the difference in the value of the two cows was furnished does not appear; there was also evidence, that the last of May or the first of June, 1845, the second cow was exchanged for the one replevied, and in the trade Alpheus Dyer, one of the plaintiffs, paid three dollars; that the last cow, after she was so obtained up to the time she was replevied, was kept upon the farm by Isaac Dyer, which he had occupied for a long time before the lease, that he took from the plaintiffs dated June 10, 1845, the plaintiffs the day before the date of the lease having taken' from the owner a bond for a deed of the farm. There was no evidence of any contract between Stephen H. and Isaac Dyer, of any description, at the time the money was paid by Stephen for the redemption of the cow ; it appears that it was sent to the wife of Isaac, and that he paid it to the mortgagee of the cow ; and there
The other* property replevied, was slabs and drift-wood taken from Saco river, which passes by the farm, of which Isaac had a lease from the plaintiffs. From evidence introduced by them, this property was taken out of the river as it was passing down, by Isaac Dyer and his minor sons, who were under his charge and control, assisted one day by Alpheus, the plaintiff, and placed upon the bank, on this farm. It appeared that Isaac Dyer not only rescued it from the river, but that he hired men and teams to haul it; that portions of it he sold on his own account, treating it in all respects as his own, and exercising com-
If the wood had been the fruit of the labor, which the lessee was bound by the lease to perform upon the farm, by the authority of the case of Garland v. Hilborn, 23 Maine, 442, and other authorities relied upon by the defendant, there would even then seem to be impediments to the plaintiffs’ recovery. But the lease does not require, that labor, such as was used in the obtaining of the wood in question, should be done for the benefit of the lessors; neither was Isaac required to devote all his time to their service. The avails of bis labors, beyond what he was to do for them would be legally his own. He was under no contract or obligation, to obtain fencing stuff for them, from the forest, the river, or any other place, than from the farm of which he had a lease. To the drift-wood, which came down upon the waters of the river, they had no title, and when it was recovered by him, through his own labor or that of his procurement, they could enforce no claim thereto against him. The contiguity of the farm to the river, gave the plaintiffs no
When the evidence relied upon by the plaintiffs is examined and considered, giving it the fullest weight which can be claimed, uncontrolled by any other in the case, it is not perceived that there can be a ground on which the action can be maintained for the wood, that was replevied by the plaintiffs.
Verdict set aside and a new trial granted.