Gloss v. Black

Mr. Justice Trunkey

delivered the opinion of the court,

To maintain this action it is absolutely necessary that the plaintiff, at the time of the trespass, had the actual possession or the right of taking it. Where goods of a stranger to an execution, are seized and held under it, they are in the custody of the law, and while so held the owner cannot take possession, nor maintain replevin. The law does not attribute constructive possession to the owner of property which it has in its own control by means of an officer. A mere purchaser at a sale by the officer, who receives from him immediate possession, is not responsible in trespass. His purchase does not of itself make him a participant in the wrongful seizure, and he is not made a trespasser by relation: Hammon v. Fisher, 2 Grant 330; Ward v. Taylor, 1 Barr 238; Talmadge v. Scudder, 2 Wright 517. Young, the constable, seized and sold the timber. After such turning over and delivery as he immediately made to the purchaser, he did nothing. He had no interest in the timber and was not liable on an implied warranty of title. Before the sale, Gloss and his employees had in nowise participated in the acts of the constable. There is no evidence that Young and the other defendants acted in concert at any time. Can it be pretended that a public sale of goods in custody of the law, by its officer, without more, makes the officer and the purchaser joint trespassers ? Were this so then in all cases where the officer had committed a trespass in the seizure, the purchaser would be jointly responsible; but it is settled, as we have seen, that he is not. “ Separate acts of trespass where there is no concert will not authorize a joint recovery, although the injury be common and produced in part by each of the acts complained of:” Bard v. Yohn, 2 Casey 482.

We think the defendants’ point should have been affirmed, for there was some evidence of the facts therein assumed. The timber was alongside the public road and on the plaintiff’s land. Gloss testified that the constable delivered it into his possession at the time of sale; that he hired a man to watch it, soon as bought; that he commenced hauling it the same or the next day, and had it nearly all away before he knew Black claimed it, and then Black permitted him to haul the rest. If this be the whole truth he was not a trespasser. Bidders at a sheriff’s or constable’s sale, made on the land of the owner of the goods, are not trespassers. Nor are buyers who take away their purchases as they leave. Nor is the purchaser of timber, situate as this was in reference to a public road, who, without violence, continuously holds possession for the necessary time for bringing teams to haul it away. But in another view of the facts, which the jury might well have found and to which their attention was directed in the charge, Gloss and his employees were trespassers. What the learned judge said, in answer to the point, was entirely fitting to this view, applied to all the defendants except Young, and just what ought to have been said, even if he had granted the instruction prayed for.

There was no error in the charge as to the matter referred to in the second assignment.

The question respecting the proof of the execution, urged in argument by defendant in error, is not before us.

Judgment reversed, and venire facias de novo awarded.