Mason v. Sprague , 47 Me. 18 ( 1859 )

The opinion of the Court was drawn up by

Kent, J.

In this action of replevin the plaintiff claims title and the right of possession in 267 pine and’2113 spruce mill logs. The defendant claims that, at the time when this writ was executed, he had a right to hold these logs, against the plaintiff, by virtue of an attachment he had made on sundry writs against Rufus B. Philbrick.

The plaintiff claims title from the same Rufus B. Philbrick, who had a permit from the Land Agent of the State, which he assigned to Samuel E. Crocker, conveying to him, also, “ all the timber he had cut and which he might cut under said permit.” Crocker assigned the permit to Mason, the plaintiff, and the lumber cut under the same. At the time of the assignment to Crocker, he gave Philbrick a written agreement to furnish him with supplies and money to carry on the operation.

1. The first objection of the defendant to the plaintiff’s title, is that the original permit from the State to Philbrick is void, because it has not been shown that a bond, with sureties, for the payment of the stumpage, was given as required in § 6 of chap. 31, of the laws of 1843, .under which the permit was granted.

Whether this requirement is to be regarded as absolutely essential to the validity of the permit, or as directory only, may be a matter of doubt. The provision is, that “all persons obtaining permits shall be required to give a bond for the payment of the stumpage, and performance of all the conditions of the contract.” The statute does not, in terms, declare the permit void unless such bond is given; as it does in reference to an assignment, hereafter to be considered.

The permit is evidence of a license to cut, from the authorized agent of the State; and, in the absence of all evidence to the contrary, we may presume that that officer has done his duty, and has taken the bond which the law requires. The bond is a matter subsequent to, and independent of the permit.

There is another ground on which the plaintiff may rest. If the permit was not strictly according to the statute, Phil-brick might be a trespasser as against the State, and the State might seize all the timber, whether in his hands or in that of his vendee. But, until the State interfered, he might hold and sell the logs thus cut. His vendee would take his right and title, subject to the right of the State. • In this case loth parties claimed under Philbrick. If his title in the logs was absolutely void, it was void against the defendant as well as the' plaintiff. The State has not interposed, but, as it appears, has by its agent received payment in full. We see no objection to the title of Philbrick, so far as these parties are concerned.

This reasoning applies, also, to the objection that the permit does not fix a price for spruce, even if the fact is established. This is denied by the plaintiff, and on inspection it appears that the permit is general for “timber thereon;” and the price of spruce is stated on the opposite page of the same sheet, in the handwriting of the Land Agent.

2. The defendant objects to the validity of the assignment, and invokes the second section of the Act of 1843, before cited. That section provides that no transfer of such permit shall be made by the person obtaining it, except for the purpose of securing payment for supplies advanced for operations under the same, and that any attempt at transfer, except for said purpose, shall operate to render void the rights attempted to be transferred.” It is in evidence, and not denied, that Crocker did, on fhe day he took the assignment, agree to furnish supplies for the operation; and that he and Mason did furnish them. But the defendant insists that such assignment could only be legally made to secure supplies already advanced, and could not cover advances to be made in the future. The objection rests upon the tense of the word “advanced.” We cannot hesitate to reject this construction, which would defeat the manifest purpose of the enactment. The' Legislature did not intend to prevent operators from obtaining supplies during the season', by assignment of the permit; but did intend to prevent the issuing of licenses to irresponsible, nominal or fictitious parties, who might, according to preconcerted arrangements, immediately transfer the permit to another party. The usual course of business was well known to the Legislature; and it would require the most certain and positive language to induce the Court to believe that it was the purpose to interfere with or reverse that long established usage. An assignment to secure payment for supplies advanced, is an assignment which has for its object the obtaining of supplies for the operation as needed, and the security of the payment for such supplies. It is an assignment to secure advances, and when they are made it secures payment for supplies advanced.

3. The next objection is, that there was no sufficient delivery from Philbrick to Crocker, at least of a part of the timber. In the case of Fiske v. Small, 25 Maine, 453, it was decided, where a permit to cut timber has been assigned, that all the timber afterwards cut under it was the property of the assignees, and no delivery was necessary as against subsequently attaching creditors of the assignor. This authority covers all the timber, in this case, except about 735 spruce and about 50 pine logs, which had been cut before the assignment to Crocker. But the defendant insists that as to the logs cut before the assignment, the case cited, and the law as there explained, does not apply; that as to these logs the title could not pass, as against an attaching creditor, until a delivery, or what is equivalent thereto, is proved.

There is, doubtless, a distinction in this respect, between the two lots of logs. It is now well settled that a delivery of the- thing sold is necessary as against every one but the vendee. As to him, the title passes without delivery, where all the other requisites to make a valid sale are proved. Vining v. Gilbert, 39 Maine, 496. This rule does not, of course, apply to cases arising under the statute of frauds, where a sale is set up by proof of delivery, without any memorandum in writing, or payment of the price. In such a case, delivery is the essential thing. Ludwig v. Fuller, 17 Maine, 167. In this case, the sale was in writing.

If the title, as between Philbrick and Crocker, passed without delivery, then delivery is not an element in this sale, but is required for some other reason. This reason is, that the law regards the purchaser as acting unfairly and fraudulently in not taking delivery and possession, and allowing the seller to hold out the appearance of being the owner, and thereby inducing third parties to purchase or give credit to their injury. Ludwig v. Fuller, before cited.

¿ The common law, as formerly expounded, and as still maintained in some states, regarded a continual possession in the vendor as ipso facto fraudulent, and as rendering void a sale otherwise perfect, as against subsequent purchasers or attaching creditors. In this State this principle is modified, so far as to regard this fact of possession as one of the indicia of fraud only; which may be explained consistently with the honesty of the transaction.

But no cases have gone so far as to dispense entirely with proof of a delivery, actual or symbolical, or proof of something equivalent. But as that delivery may give only a momentary possession, or be symbolical, or of a part for the whole, the actual knowledge of a transfer may thus be communicated to very few, if to any, except the parties. The object of delivery, as of change of possession, being to give notice that another person has a claim or title to the property, it has been decided, in analogy to cases of livery of seizin, or of actual notice of a deed not recorded in real .actions, that proof of actual notice of a sale or transfer is equivalent to delivery. Ibid.; Pratt v. Parkman, 24 Pick., 42. And, before the recent statute, possession alone was notice. McKecknie v. Hoskins, 23 Maine, 230.

In this case it appears that the assignment to Crocker was made on the township, but there is no evidence that any formal delivery was made to him of the logs then cut, but they were of the same mark, and mingled with the others cut afterwards. Crocker sells and assigns to Mason, and he takes possession of all the logs, and they were under his control about two months before they were attached by defendant.

The sale from Crocker to Mason was good between themselves without delivery. This possession of Mason, who claimed under Crocker, was notice to all the world of a change of title and possession, so far as Philbrick was concerned. The fact that it was by Mason, a vendee under Crocker, cannot affect the question of notice. It was, sufficient to put all persons on inquiry; and, under the circumstances, is equivalent to, if it 'is not in fact, a delivery, so far as this defendant is concerned.

Possession by a purchaser, with assent of the vendor, express or implied, is equivalent to a formal delivery. Buckman v. Nash, 12 Maine, 476. As delivery was not essential to pass the title, the possession, which is its equivalent as notice, may be by or under the title of the first purchaser. It is sufficient if the change of possession is perfected before attachment. Kendall v. Sampson, 12 Verm., 515.

The decision of this point renders it unnecessary to discuss other points, in reference to the attachments being only to secure liens, which have failed, and in relation to intermixture or confusion of goods, and the difficulty of selecting those cut before from those cut after the assignment, and some other questions which are not without difficulties for the defendant to overcome. Judgment for plaintiff;— one cent damages and costs.

Tenney, C. J., Appleton, Cutting, May and Davis, JJ., concurred.