15 Pa. 507 | Pa. | 1851
The opinion of the court was delivered by
It is well settled as a general principle, that in Pennsylvania, replevin lies wherever one man claims goods in the possession of another, and this, whether the claimant has ever had possession or not, and whether his property in the goods be absolute or qualified, provided he has the right of possession : Weaver v. Lawrence, 1 Dal. 157; Shearick v. Huber, 6 Bin. 3; Woods v. Nixon, Adison 134; and Stoughton v. Rappalo, 3 Ser. & R. 562. It is also undisputed, that in this State, the machinery of a cotton or woollen manufactory, which is necessary to constitute it, is a part of the freehold; and as such, will pass by the deed of the vendor conveying the land on which the manufactory stands, or by the deed of the sheriff who sells the real estate of the owner under execution. So if a fixture or other part of the real estate be wrongfully detached from the freehold, the thing detached becomes the personal property of the owner of the soil, and he may, in general, maintain trover or replevin for the same. Considering these general principles, the defendant contends "that replevin is not the proper remedy, because it falls within the scope of other cases equally well settled, beginning with Mather v. Trinity Church, 3 Ser. & R. 509, recognised in Baker v. Howell, 6 Ser. & R. 476; Browns. Caldwell, 10 Ser. & R. 114; that replevin is not the proper action to try title to land. In Mather v. The Trinity Church it is ruled that trover for stone and gravel from land does not lie by one who has the right of possession against the person who has the actual adverse possession of the land and sets up title to it. It will be remarked that it is not the actual possession, but it is the actual adverse possession of a person who claims title to it, that is the criterion. The case is put on this ground by Chief Justice Tilghman and Justice Duncan, both of whom delivered elaborate opinions: a criterion from which none will dissent, when it is considered what inconveniences. would arise from a contrary decision. Baker v. Howell is a case of similar description, in which it is held that an action for money had and received would not lie for the price of sand, taken from a sand-bar to which both the plaintiff and defendant claimed title, and sold by defendant. Mr. Justice Duncan says, an action of assumpsit for money had and received is not the form of action in which conflicting titles to Idnd or the right of inheritance may be tried. To the same effect is Brown v. Caldwell, 10 Ser. & R. 114. In that case it is ruled, that replevin will not lie by one not in the actual, exclusive possession of land, whatever title he may claim, against one who is in the actual, visible, notorious occupancy and possession thereof, claiming the right, for slates taken out of a quarry on the land. There Caldwell was in the
In the case of uncultivated land, as before said, possession can only be proved by proving title. Indeed, proof of possession itself is proof of title. To the same purport is Wright v. Guyer, 9 W. 177, and Elliott v. Powell 10 W. 455. Here the evidence of title proved the right of possession, which was necessary to maintain the action. Having the right of possession, the temporary occupation of the premises is not such an adverse, hostile, notorious possession, claiming title, as will defeat the action. I have already remarked that the plaintiff was quasi landlord, the defendant tenant, and this brings the case within the principle ruled in Ferrand v. Thompson, 5 B. & Ald. 826, and Moers v. Wait, 3 Wend. 104. In the former it is ruled that where certain mill-machinery, together with a mill, had been demised for a term to a tenant, and he, without permission of his landlord, severed the machinery from the mill, and it was afterwards seized under a fi. fa. by the sheriff, and sold by him, no property passed to the vendee, and the landlord was entitled to bring trover for the machinery, even during the continuance of the term. The question is distinctly put, whether, inasmuch as a man named Richard was tenant of the mill, and of course in possession under an agreement for a term, the plaintiff, as landlord, could maintain trover for the goods, his remedy being, as was contended, case, for the injury to the reversion. The court decided the action could be maintained. The reason given by Abbott, C. J., is, that inasmuch as the chattels were part of the realty when separated from the mill, they would, as in the case of trees cut down by a tenant, revert to the landlord; and upon that principle, trover is maintainable by him. In this view of the case, Bayley, J., and Holroyd, J., concurred. Moers v. Wait, 3 Wend. 104, is also in point. There it is ruled that if a person entering into possession of uncultivated land, under a contract of sale, giving him the right of occupancy, and reserving to the landlord the land as security for the purchase-money, cuts timber for
We see nothing in the testimony, either of the sheriff or the other witnesses, which estops the plaintiff from asserting his title to the machinery of the mill, if his declarations were made in ignorance of his rights. He appears to have labored under the common mistake that machinery in a mill was personal, not real property. There is not a shadow of proof that he intended to relinquish his own property for the benefit of the defendants. If the real estate brought less in consequence of his mistaken notion of the law, that may have been a reason for setting aside the sale, but is of no moment whatever in this action.