Symonds v. Hall , 37 Me. 354 ( 1853 )

Howard, J.

— The contract between the plaintiff and Foster was in legal effect a lease, by which the latter was entitled to the “use and benefit” of the farm of the former, with all the products of the farm, and benefit of the buildings, excepting what is hereinafter mentioned.” The lessor reserved to himself a specified portion of the dwellinghouse and “ a privilege of stowing the hay that is now in the barn, and his part of the hay to be cut on the farm, until sold or disposed of.” The lessee was to “carry the farm on well, secure the hay in good season and order,” and, as stipulated in the lease, “ one half of the hay cut on the farm is to be eat by the stock kept on the farm; the other half of the hay is to be divided equally between the contracting parties.” There is no provision in the agreement as to keeping stock upon the farm, excepting what applies to the lessee. He was to have a sufficient part of the barn and shed to “ stow and keep all his part of the hay cut on the place, and the stock he may keep to eat up his part of the hay;” and he was to pay forty dollars rent, annually.

Under this contract, Foster, the lessee, entered into possession, and cultivated the farm, and secured the products, as it seems, according to the agreement. He thus became owner of the entire products, until there had been a division of the hay as stipulated in the agreement. Till then, the plaintiff' could not take any portion of the hay, as his own property; but his rights and remedies were ex cathedra, in respect to the lease, upon the stipulations of the lessee. The contract, until executed, gave him no claim in rem upon the hay, or other crops of the farm. Bailey v. Fillebrown, 9 Maine, 12; Dockham v. Parker, 9 Maine, 137; Turner v. Bachelder, 17 Maine, 257; Garland v. Hilborn, 23 Maine, 442; Butterfield v. Baker, 5 Pick. 552. These cases fully support this construction of the agreement between the plaintiff and Foster.

The evidence establishes’the fact of a division of the hay, contemplated by the parties to the lease, before the attachment. By that division, the plaintiff became possessed, as ownei’, of the “ first mow, or scaffold, next to the road,” and the “ ground mow below the top of the girts,” in the large barn, as his quarter part of the hay cut upon the farm. But to the “undivided half” of the hay, he acquired no title, by division or by delivery. This remained the property of the lessee, upon the legal construction of the contract, as before stated.

By an act of trespass, one cannot acquire a right in the •property of another, as against him. An officer who seizes on execution the goods of one who is not the debtor, is a trespasser; and if he keep and sell them, these are but additional acts of trespass, commencing, continuing and ending in wrong, and from which no rights^ accrue against the owner, The purchaser can acquire no title to the goods from one who had no right to them; for neither the official character of the vendor, nor the publicity of the sale, can legalize the trespass and sustain the purchase. Wheelwright v. Depeyster, 1 Johns. 471; Carter v. Simpson, 7 Johns. 535; Saltus v. Everett, 20 Wend. 267; Commonwealth v. Kennard, 8 Pick. 133; 1 Chitty’s Pl. 185; Cooper v. Chitty, 1 Burr. 32. But sales of property authorized by law, will be upheld, notwithstanding irregularities in the proceedings of the vendor in effecting the sale. Public policy requires that the innocent purchaser should not suffer by the neglects of an officer in executing a legal precept within his authority and jurisdiction. Ladd v. Blunt, 4 Mass. 402; Hunter v. Perry, 33 Maine, 159. So, if one obtain goods by fraudulent purchase, which is void in respect to himself, and transfer them to another, bona fide, and without notice, the property has been held to pass to the latter, and the vendor cannot maintain trespass for the property. Mowrey v. Walsh, 8 Cow. 238; Parker v. Patrick, 5 T. R. 175.

In taking and selling the hay of the plaintiff, on the scaffold, o'n November 15, on an execution against Poster, after the division had been effected, the defendant Hall was a trespasser ; and Morrill, the other defendant, by purchasing that portion of the hay and removing it, with the assistance of the officer, became a joint trespasser; and both will be held responsible to the plaintiff for the damages accruing to him from that sale of his hay. The officer, Hall, is also accountable in like manner, for taking, selling and delivering to others, the remaining portion of the plaintiff’s hay, in the “ ground mow,” on November 29, in which Morrill did not participate, and for which he is not accountable, upon the pleadings and proof.

The plaintiff is entitled to judgment against both defendants for the joint trespass, but not for the several trespass of Hall. Or, he may discontinue as to Morrill, and take judgment against Hall for both trespasses.

As we -are unable from the evidence reported, to assess the damages accurately, there must be a further hearing for that purpose, unless the amounts shall be agreed upon by the parties. Defendants defaulted.

Shepley, C. J., and Tenney and Appleton, J. J., concurred.