Sheldon v. White , 35 Me. 233 ( 1853 )

Shepley, C. J.

— To maintain this action there must be proof, that the intestate had acquired a general or special property in the goods replevied. The boards appear to have been sawed from logs cut on a tract of land in Canada by the written permission of Andrew T. Galt to J. W. Larry.

The iutestate claimed to be the owner of those logs by a sale of them made by Larry to Parker Sheldon on October 10, 1850, and by Parker Sheldon to himself on June 6, 1851.

The defendants claim them by a mortgage bill of salo made in February, 1850, and recorded in the records of the town of Bingham, where the mortgagers resided, on Feb. 16, 1850. And also by another mortgage bill of sale of them made by Larry to them on April 6, 1850.

The fact, that the logs were cut under a permit granted to Larry, is not sufficient to prove that they were owned by him. It might, in the absence of other proof, raise a presumption, that they were cut by or for him and that he was therefore the owner. It appears, that they were cut and hauled by Abel W. Heald, William Brown and Jotham Eldridge. It does not appear what arrangement, if any, was made for the purpose between them aud Larry. Nor does it appear, that they were cut and hauled by them for Larry, or that Larry ever became responsible to pay them any thing for their labor.

It does appear, that those, who cut and hauled them, claimed to be the owners of them, and that as such they assumed to convey them to the defendants. It further appears from a disclosure made by one of the defendants, introduced as evidence by the plaintiff, that Larry took a bill of sale of them from Heald and Eldridge in the month of March, 1850. That after this, on March 30, a suit was commenced by the defendants against Larry, charging him with having taken, on March 17, a bill of sale of these logs, with other property, from Heald and Eldridge with a design to aid them to defraud their creditors. To secure the payment of the amount of the judgment, that might be rendered in that suit, Larry made the bill of sale of the logs to them of the sixth of April, 1850. ■

Larry during the preceding winter had agreed to be accountable to Benjamin B. Mace for supplies then furnished to Heald and Eldridge. These supplies appear to have been paid for by Larry by property purchased by him of them by their bill of sale to him before named.

Larry also appears by the testimony of Atkinson to have claimed to be the owner of the logs in March or April, 1850, and to have offered to sell them. It does not appear, that this was before he had taken a bill of sale of them from Heald and Eldridge. It appears, that Larry, in the spring of 1850, procured men and supplies to float the logs from the ponds, in which they had been before found, but this appears also to have been after he took that bill of sale.

The result of this testimony is, that those who cut and hauled the logs claimed to be the owners of them and as such undertook to sell them ; that Larry took a bill of sale of them from them, thereby admitting their title; that his subsequent claims and acts of ownership were not inconsistent with his admission of their prior title ; that there is no satisfactory proof, that he owned the logs, unless he acquired a title to them from Heald and Eldridge. That title he could not obtain, if their prior conveyance to the defendants was effectual.

To this objection is made, that it was not properly executed by Heald for himself and partners; that the firm of Heald and Brown had been dissolved; and that Heald could not therefore convey their property. Brown does not appear to have claimed any interest in the logs after he retired, and was succeeded by Eldridge. The bill of sale states, that Eldridge was the successor to Brown. An inference may therefore be justly drawn, that he succeeded to all his partnership rights. If he did, Heald and Eldridge might lawfully convey the whole. If he did not, Brown would retain his interest, which would not be conveyed to Larry any more than to defendants, by a bill of sale made by Heald and Eldridge. Heald and Eldridge appear to have been partners in that business, and a conveyance by one of them would convey their partnership property.

Another objection to it is, that they undertook to convey logs to be subsequently cut and hauled. It does not appear, that all the logs subsequently cut were conveyed to Larry. His bill of sale was taken about one month only later, and it does not appear, that the boards replevied were sawed from logs cut after the mortgage was made to the defendants.

Other objections were made, which are not regarded as valid.

It is insisted, that the defendants are estopped by the allegations, made in their writ against Larry, that Heald and Eldridge were the owners of the logs when they made a conveyance of them to Larry. An allegation in a writ cannot operate as an estoppel, when the judgment recovered is no muniment of title, and the party insisting is no party to the judgment. Parsons v. Copeland, 33 Maine, 370.

No such proof of title in the intestate is presented as would authorize a judgment for the plaintiff.

Plaintiff nonsuit and judgment for a return.

Howard, Wells, Rice and Hathaway, J. J., concurred.