47 Pa. 387 | Pa. | 1864
The opinion of the court was delivered, by
This was an action of trespass for taking and carrying away one hundred and three thousand five hundred feet of lumber, which the plaintiff alleged to belong to him, whereof he had acquired the title at a sheriff’s sale of the property of Dr. Henry Brooks. The undisputed evidence in the case was, that Dr. Brooks having been the owner of a steam saw-mill, and also of the timber standing on three certain tracts of land, agreed to give the use of the mill to Trout, the defendant, for the purpose of manufacturing the timber into lumber. The agreement stipulated that Trout should cut the logs, get them to the mill, saw them out, pile the boards, and give to Dr. Brooks one-half the boards, to be divided in the pile. Under this contract two hundred and seven thousand feet were manufactured and piled, but the defendant refused to make any division, and claimed to retain all. Not only so, he removed from the mill property a considerable portion of the lumber, transporting it about three miles in the direction of the market. After this had been done, an execution was issued against Dr. Brooks, under which the sheriff levied upon his interest in the two hundred and seven thousand feet of lumber, and on the 3d of January 1861, made a sale, returning that he had sold one hundred and three thousand five hundred feet to the plaintiff for the sum of $362.25, at $3.50 per thousand. After the sale, the defendant continued to haul the lumber away until most of the remainder had been removed, when this suit was brought.
In view of these uncontroverted facts, the defendant contended at the trial that, the lumber not having been divided, the sheriff’s sale gave to the plaintiff only the one-half of one hundred and three thousand five hundred feet thereof, and that the plaintiff and defendant being tenants in common of the lumber, this action
The first of these positions is clearly not maintainable. The sheriff’s levy was upon the interest of Brooks in the entire quantity of two hundred and seven thousand feet. No doubt it was supposed (as seemed to have been understood at the trial by both the court and the defendant), that the interest of Dr. Brooks was an ownership of the undivided half. Hence, when the sale came to be made, the sheriff returned it as a sale of one hundred and three thousand five hundred feet, not as a sale of the debtor’s interest in that quantity, but as a sale of the quantity itself. The statement of the price also proves that quantity to have been sold. The sale was returned as made for three dollars and a half per thousand, and the aggregate proceeds as $362.25, which could not have been had any less quantity than one hundred and three thousand five hundred feet passed to the purchaser. The first point of the defendant was therefore rightly denied. And the court was not called upon to say what was the effect of the sale, if, instead of a joint ownership, the entire ownership of the lumber was in Brooks, subject only to a lien for the price of its manufacture.
The next question relates to the form of the action. And if, as was assumed in the court below, the plaintiff and defendant were tenants in common, or joint owners of the lumber, Avhen the alleged trespass was committed, it is difficult to see how an action of trespass could be maintained by one against the other for any act done to it which did not amount to its destruction. Both trespass and trover are founded upon the plaintiff’s right of possession, and, of course, a right of -possession as against the defendant. But when the defendant is a tenant in common with the plaintiff, or a joint owner with him of a chattel, his right of possession is equal to that of his co-tenant. Each has an interest in the whole, and each has a right of possession. For this reason it has always been held that neither trover nor trespass can be maintained by one against the other for any injury to the chattel, or to the plaintiff’s rights to it, which falls short of its destruction. See Littleton, § 323, and Lord Coke’s Commentary upon it. See also 1 Chitty’s Plead. 157. There are repeated decisions to this effect in both the English and American courts, and I am not aware that the doctrine has ever been questioned. It has indeed been sometimes debated whether the sale of a chattel as' entirely his own, by one joint owner, may be regarded as equivalent to its destruction, so as to enable the other OAvner to main
On the other hand, if the plaintiff and defendant were not joint owners of the lumber, the defendant’s second point should not have been affirmed. And that they were not, that the de
Under the facts of the case, as they appeared in evidence, the court answered the defendant’s third point correctly. A very large portion of the lumber was hauled away after the sale, and before the suit was brought, and that which had been hauled away before was left where it might make up full loads with that which was taken after the plaintiff became the purchaser. Whatever was taken was taken under an assertion of right to the whole. The hauling away was therefore not a succession of disconnected trespasses, but one continuous act. Every act of taking may well be considered a taking of the whole, for it was in the name of the whole. No doubt in trespass, as in other actions, damages can he assigned only to the time of purchasing the writ. New and independent trespasses may be compensated by a second action. But in this case the taking and carrying away the lumber was a single act, though it may have required many days as well as teams to remove it.
The judgment is affirmed.