Merritt v. Johnson

7 Johns. 473 | N.Y. Sup. Ct. | 1811

Per Curiam.

The plaintiff has not shown a right of-property in the sloop' so as to entitle him to an action of trover. The sloop was built by Travis, not on the ground of the plaintiff, or of Ebenezer Merritt, from whom he purchased his present right of action. It was built on ground belonging to third persons, and hired by Travis for this purpose. The principal part of the materials for the sloop, such as the timber for the frame, was furnished by Travis, and the sloop was one third finished and planked up to the-wales, when she was seized and sold by the sheriff as the property of Travis, and under that sale the defendant holds the possession. The plaintiff’s right rested entirely on the contract with Travis ; and the sloop did not become his property until finished. and delivered. The ground on which the frame of the sloop stood, did, for that occasion, belong to Travisi and as he furnished all the timber for the frame, he certainly contributed the principal part of the materials. There is then no just pretence for considering the property of the unfinished sloop as vested in Merritt. When the materials of another are united to materials of. mine, by my labour, or by the labour of another, and mine are the principal materials, and those of the other only accessory, I acquire the right of property in the whole, by right of accession. This is considered as a general principle in the acquisition of property. It is so laid down by Brae-ton, (de acqui. rerum dom. c. 2. s. 3, 4.) and Pothier illustrates it by a variety of clear and apposite examples. (Traité du droit de Propriété, No. 169. 180.) Molloy (b. 2. c. 1. s. 7.) applies a similar principle to the very case, •of building a vessel, and he refers to the Pandects, (Dig. 6.1. 61.) where it is admitted that if one repairs his vessel with another’s materials, the property of the vessel remains in him; but if he builds a vessel from the foundation, with the materials of another, the vessel belongs to the owner of the materials. Gothofredus, in his notes upon this passage, says, that if one builds a ship with his own and another’s materials, the ship is his property, unless the keel was furnished by the other, and then the property would follow the keel, which he considers in-star soli et fundi. But without pursuing these distinctions further, it is sufficient to observe, that upon the principles acknowledged by all the writers, the property of the vessel in question was in Travis when she was sold under the execution against him, and judgment must, accordingly be rendered for the defendant.

Judgment for the defendant.