Fiske v. Small , 25 Me. 453 ( 1845 )

The opinion of the Court was drawn up by

Tenney J.

Ezekiel Hackett and others, having written permits from the proprietors of lands to cut and haul timber therefrom, and having assigned them to the plaintiffs for the security of certain claims in the assignment mentioned, their interest in the permits and the license to cut the timber, as it then stood, passed to the assignees without further ceremony, subject to any right of interference by the proprietors of the land for any violations of the contract, to their prejudice. Before the timber was cut, it is not pretended, that under the contract to cut, the persons permitted had any attachable interest, in the contract or the timber. No delivery of the trees attached to the soil could have been made, or was necessary to pass the interest to the assignees. Fraud between the parties to the assignment is not suggested. There was no delivery of the logs to t.he plaintiffs after they were cut, and it is therefore contended by the defendant’s counsel, that their right thereto was so imperfect, as not to allow them to contest that acquired by virtue of an attachment of a creditor upon a precept against the assignors. The owners of the land make no complaint, and indeed it is not perceived, that they could do so, as it does not appear, that the cutting was not in the mode and by the persons, with whom they contracted. The individuals permitted had parted with all their rights before, and could not after the cutting acquire such an interest in the lumber, as to make it attachable for their debts. It was competent for the plaintiffs to employ either or all of these as their agents to hold possession of the logs for them, after they were ■severed from the soil; the assignors were not rendered incapable of performing such a service, by having been parties to the original contract. The case shows that the lumber was in possession of Hackett, and the jury have found, under proper instructions, that Hackett had this possession and control of the property, as the plaintiffs’ agent; and his possession must be regarded as theirs. Several cases have been cited to show that property sold and not delivered, does not confer a title in the vendee, as against the attaching creditor of a vendor; also cases where the contract is for a chattel, not in existence, which will not vest the property in the one contracting to have it made for him, without a delivery after its manufacture. This case is different from those referred to. The identity of the timber was not changed, in the conversion from trees to logs; if the plaintiffs had a claim to the former, they had also to the latter.

Exceptions are taken to the instructions of the Judge to the jury, that the acts of ownership of the timber by Hackett, and the statements made by him in reference to it, according to the testimony of several witnesses, were for their consideration only, as tending to discredit Hackett, who had been a witness, and not as showing property in him. If Hackett had not been a witness, the testimony of his acts and declarations, made after he parted with his interest could not have been received; these acts and declarations were competent only for the purpose of showing that he had not been consistent in his account of the transaction; he could not throw a doubt over the validity of a title, which had passed from him.

The evidence of Veazie, that one of the plaintiffs disclaimed all title to the property, in a conversation with him, was important for a jury to consider upon the question involved, but it was not conclusive; it could, like any other admission of a party, be explained.

The legal propriety of the instruction, that none of the logs paid for by Davis & Pond, under a contract between them and Hackett & Martin, would pass to them, excepting so far as they were delivered in the Penobscot boom in pursuance of the contract in other respects, may be considered more doubtful, provided the defence was put upon the ground, that Hack-ett’s right at the time of the attachment was under that contract. The defendant justifies the act of his deputy under a precept in favor of Win. Smith against Hackett, without any suggestion that the title of Davis & Pond passed to the debtor. As between these parties, the constructive possession was in the plaintiffs by the assignment and what took place under it; and it is a well settled principle, in an action of trespass de bonis asportatis, that a mere stranger cannot set up an outstanding title, without showing some authority under it to justify the taking. Cook v. Howard, 13 Johns. R. 276.

Exceptions overruled.