Ferguson v. Lauterstein ( 1894 )

Opinion by

Mb.. Justice Gbeen,

In the case of Harlan v. Harlan, 15 Pa. 507, Mr. Justice Rogebs, delivering the opinion, said: “ It is well settled, as a general principle, that in Pennsylvania, replevin lies wherever one man claims goods in the possession of another and this whether the claimant has ever had possession or not and whether his property in the goods be absolute, or qualified, provided he has the right of possession.” In that case we held that a purchaser at sheriff’s sale, of a mill property, could maintain replevin for a piece of machinery, part of the freehold, but detached therefrom by the former owner, although he had never been in possession and could only make title to the machinery by proving his title to the land.

In Rowe v. Sharp, 51 Pa. 26, we sustained an action of replevin, brought by the owner who had let a pair of billiard tables upon a bailment for use with a provisioñ for sale in case of the payment of the price, where the bailee had delivered them to another to indemnify him as surety during the continuance of the bailment. The court below had said: “ The mere liability of Rowe as bail, and especially if not injured thereby, would not entitle him to hold the property from Sharp, if the terms of the lease had been violated by Goff; nor would his and Fero’s subsequent purchase, with this knowledge of the manner in which the other held it, give them any additional or greater right to hold it from the lessee. ... If the evidence is credited by the jury the plaintiff is entitled to recover back his property.” This was assigned for error, but we held it was correct, and thus sustained the action and also the proposition that the violation of the terms of the lease by the lessee gave a right of recovery to the lessor from the grantees of the lessee. This case practically covers the present because the lease was violated by the lessee by not paying the rent, and this gave a right of recovery in replevin against the lessee, and consequently against his grantees.

In Crist v. Kleber, 79 Pa. 290, we sustained an action of replevin for a piano which had been leased to one with a privilege to purchase at a designated price. The price was not paid and the piano was sold for taxes owing by the lessee. The action was brought by the lessor against the purchaser at the tax sale, and a recovery was had which this court affirmed.

In Miller v. Warden, Frew & Co., 111 Pa. 300, we reaffirmed the doctrine of Harlan v. Harlan, saying that “ The action of replevin lies in Pennsylvania for the property of one person in possession of another, whether the claimant ever had possession of it or not, provided he has the right of possession.”

In Ferguson v. Rafferty, 128 Pa. 337, we held that, upon a sale of certain timber to be cut by the vendee, but the vendor to have the right to hold the logs until the purchase money was paid, the vendor had a qualified title upon which, the purchase money remaining unpaid, he might maintain replevin for logs removed by the vendee or one claiming under him. We said: “The defendant claimed title to the whole of the logs under a sheriff’s sale of the title of D. L. Ferguson, and D. L. Ferguson's title was derived exclusively from the sale made to him by the plaintiff. The defendant being a purchaser with notice of the plaintiff’s claim of title, is in no better position than D. L. Ferguson would have been if he had been the defendant. . . . It seems to us quite plain that as between himself and D. L. Ferguson, or the defendant with notice, he had the right to the possession for the security of the purchase money, and at least a qualified title to the logs. In such circumstances the authorities are plain that there may be a recovery.”

The foregoing eases are quite sufficient to sustain a recovery in the present case. The question of the defendant’^ notice of Ferguson’s claim of title before he purchased was submitted to the jury by the court below, and found for the plaintiff. The court further held that the furniture was let to the Crinnian Brothers upon a bailment for use, with a privilege to buy upon paying the purchase money, 14,100, and that if Crinnian Brothers never did buy nor pay the rent, the plaintiff had the right of possession as against Crinnian Brothers, and therefore against the defendant claiming under them. We think this a correct interpretation of the law in Pennsylvania under our decisions, and as Crinnian Brothers never did buy the furniture nor pay the rent, the plaintiff had the right to have possession for the protection of his title, both against them and the defendant claiming under them.

Judgment affirmed.