90 Pa. 210 | Pa. | 1879
delivered the opinion of the court,
Chase, as survivor of the partnership, composed of himself and Stuart A. Wylie, was entitled to have the possession of the assets and property of the company only for the purposes of settlement and liquidation. His possession was that of the firm; he had no right to put that property to any personal use, neither could he have maintained an action for it in his own name. In other words, the right of property and right of possession were in him, only as the representative of the previous partnership, which had. been dissolved by the death of Wylie. The sheriff, however, made his levy upon this property as the property of A. H. Chase, and as such it was sold, and bought in by McNair. Furthermore,- McNair having so bought, took possession of this property, and has since continued to claim, use and dispose of it as his own. Let us suppose that there had been no sale by Wylie’s administratrix to Chase; that, at the time of the levy and sale, this printing material belonged to the partnership and that it was in Chase’s possession only as a surviving member of that partnership; what then follows ? Plainly this, that both the sheriff and McNair were trespassers and, as such, responsible to the representative of the firm for the price of the goods. But this supposed status of the property,- in controversy, is just what the plaintiff’s bill claims as its real status, and such being the case, it passes our comprehension to know how McNair can be treated as an agent or trustee of the firm, and so brought within the reach of equity process. Surely if he is to account at all it is in an action of trespass, and not in a suit in equity.
But, again, when the sheriff mhde his levy upon the controverted property, Chase was found in the exclusive possession of it, clairnifig and using it as his own separate estate, and as such, it was sold by the sheriff and bought in by McNair. It becomes, then, important to inquire how this claim, by Chase, of exclusive right and possession arose. The answer is, by the sale to him by the administratrix of Wylie’s estate, as set forth in the paper of August 15th 1872. Now we need not stop to inquire whether that sale was conditional or unconditional, for this much is certain that, by virtue of it, the possession of the property passed to Chase. He thereafter used it for his own purposes, for the printing of his own paper, a use which he could not legally^ have made of the property but by virtue of the contract of sale. It is said, however, that the plaintiff did not know of this use by Chase; we can only answer, if she did not have knowledge of this fact, it was because she was not properly informed by her own attorney, who negotiated the sale on
It is alleged, however, that McNair by his answer admits that he had notice of the conditions under which Chase held this property. It is true he admits the fact, as set forth in the bill, that Chase’s claim was founded upon the paper of August 15th 1872, but he states, in connection with this admission, that, with the full knowledge and consent of the plaintiff, Chase assumed the entire and exclusive control over the property, and held himself out to the world as the sole owner thereof. Taking this as true, and we have the parties themselves, by their acts, putting such a construction on a contract, which, at best, is of doubtful import, as would lead creditors to believe that Chase’s title was absolute and unconditional. Such being the case, the vendor would be estopped from setting up the conditions to defeat that title, in a contest with bona fide creditors. Beside this, if we pass to the testimony, we find McNair declaring, “ My means of information that Chase owned the £ York Republican’ at the time of the sheriff’s sale were, that Chase himsel'f told me so; he told me he had purchased Stuart A. Wylie’s interest.” Now as Chase was in the exclusive possession of the property, with the assent of the plaintiff, McNair had a right to assume that these declarations were true, and to act upon them, and he was not bound to inquire further. Authority for this conclusion will be found in the case of Over v. Blackstone, 8 W. & S. 71. That case, like the present, was one involving a conditional sale. One Job Parker had sold the horses in controversy, previously to his sale to the plaintiffs, to Long & Blackstone, but continued in the possession of them under an arrangement that he was to have the privilege of redeeming them by carrying metal for Long & Blackstone, to Pittsburgh. It was held, that as Parker was in possession of the property, the plaintiffs were justified in acting upon his declaration to them, that the contract with Long & Blackstone had been avoided, and that they were not bound to make further inquiry.
The appeal is dismissed, decree affirmed, and ordered that the costs be mid by appellant.