National Transit Co. v. Weston

121 Pa. 485 | Pa. | 1888

Opinion,

Mr. Justice Green :

We think the learned court below was in error in applying the doctrine of estoppel to the claim of the defendant. The oil- in controversy had been received by the defendant as a common carrier, for purposes of transportation, from Gill, who had produced it in the regular course of his business as an oil producer. He was in possession of the land from which the oil was obtained under a sheriff’s deed made in pursuance of a judicial sale upon a judgment sur mechanics’ lien against the former owner. We discover nothing in this record to indicate any fraud .or force in the possession of Gill, and he certainly had a right to defend his title by any means which tended to defeat the claim of the plaintiffs, who were also purchasers at a subsequent judicial sale.

Certainly, there were no relations between Gill and these plaintiffs which made room for the doctrine of estoppel to be applied to close Gill’s mouth and tie his hands as against them. They were strangers, and adverse claimants to the same property, under different and conflicting sheriff's sales. Gill had asserted nothing, and done nothing, to mislead the plaintiffs in any way. If Curtis, the former owner, as whose property the land was sold, had given a mortgage which was subject to any kind of defect, and the property was exposed to sale by the sheriff under a valid judgment, certainly any stranger could buy it and take advantage of such defect, whether Curtis could do so or not. In Uhler v. Hutchinson, 23 Pa. 110, we held that the holder of an unrecorded mortgage, or of a mortgage illegally recorded, by giving notice of its existence at a sheriff’s sale upon a judgment, cannot bind the estate mortgaged in the hands of a purchaser at such sale where the judgment creditor had no notice of the mortgage when his judgment was entered. While the mortgage would have been perfectly good against the mortgagor, that consideration did not impair the title of the purchaser or clog it with any estoppel to which the morjr gagor might be subject. The case of Calder v. Chapman, 52 Pa. 359, is another emphatic illustration of the same doctrine.

There being no estoppel in the defendant’s way, the only remaining question is whether trover would lie to recover the value of the oil removed from the premises by Gill during the period of his possession. He was certainly in the actual, adverse, hostile possession of the land, claiming by color of title, and removed the oil in the exercise of his colorable title. The oil was a part of the profits of the land, as much so as growing crops. It was in no sense a fixture or distinctive part of the improvements upon the land. Prior to the act of May 15, 1871, P. L. 268, neither replevin nor trover would lie for the recovery of articles severed from the freehold by an adverse claimant in possession, the proper remedy being ejectment, and for mesne profits: Mather v. Trinity Church, 3 S. & R. 509; Powell v. Smith, 2 W. 126; Lehman v. Kellerman, 65 Pa. 489. By the terms of that act, it is provided, “ that in all actions of replevin now pending or hereafter brought to recover timber, lumber, coal or other property severed from realty, the plaintiff shall be.entitled to recover, notwithstanding the fact that the title to the land from which said property was severed may be in dispute.” As the language of the act is limited to the-action of replevin, it does not embrace any other form of action, and hence is inapplicable to actions of trover. The case of King v. Richards, 6 Wh. 418, has no application to the facts of this case. There the bailee delivered the goods to the true' owner and was sued by the bailor, and it was held that the delivery to the true owner was a good defence. But the goods in question were not profits of land severed from the freehold by one in adverse possession, and no such question could, or did, arise as the one developed on this record.

Judgment reversed.