Weed & Hoffman v. Hall

Mr. Justice Paxson

delivered the opinion of the court, December 30th 1882.

When the plaintiff below brought his action, of replevin he had neither the possession nor the right of possession to the house in controversy He had the legal title to the lot. upon which the house had been erected, but the possession and the equitable title were in George D. Mead, or the defendants below, who claim through and under Mead. This of itself would defeat this action of replevin, for while it is now settled law that replevin will lie by the owner of real estate for fixtures unlawfully severed from the freehold; none of the cases has gone so far as to hold that the action can be sustained by one who has not at least theright of possession. Harlan v. Harlan, 3 Harris 507, was much relied upon to sustain the opposite view, but it is not authority for any such doctrine. The suit there was by the purchaser of a mill and its machinery at a sheriff’s sale. After the.sale the former owner detached some of the machinery, and it was held that the purchaser at the sheriff’s sale could maintain replevin for the articles so detached. Although not in possession at the time of the severance, he had-the right to the immediate possession and this will sustain replevin.

The plaintiff below having sold the lot to Mead by articles of agreement, and having a lien for the unpaid purchase money, would have been entitled to a writ of estrepement to prevent the removal of the house, or he could have enforced performance of the contract by ejectment. Bnt the vendee of lands by articles of agreement is the owner, subject to a lien for the unpaid purchase money, and being in possession may do what he will with it. The removal of buildings or fences on the land may or may not be a ground of complaint on the part of the .vendor. If done to impair his lien for the purchase money, it would be a fraud, but if for the purpose of erecting better ones in the place of those removed or destroyed, the vendor would have no right to interfere. In such case he certainly could not maintain replevin for the old timber and rails.

The plaintiff also claimed title through an alleged sheriff's sale. The court below ignored this part of his case, and declined to submit it to the jury, under the belief that his title was good without regard to such sale. This, we think was error. If the plaintiff cannot sustain his sheriff’s title he has no cause of action. It is therefore necessary for us to consider this branch of the case.

It involves two questions of fact which should have been submitted to the jury, viz: 1. Was the sale of the house by Mead to Gr. W. Weed bona fide, and untainted by fraud? and 2. Was the house sold by the sheriff, after severance from the freehold, to the plaintiff ?

It needs no argument to show that if the sale and removal of the house was intended by Mead to hinder and delay the plaintiff in the collection of the unpaid purchase money, and this object was known to, and participated in by Weed, the purchaser, it would be such a fraud as would avoid the transaction as to the plaintiff, and Weed would take no title. On the other hand, if the transaction was free from fraud, the sale from Mead to Weed would pass a good title, and the sheriff’s sale would drop out of the case. But if no title passed to Weed it is manifest the plaintiff had the right after severance to treat the house as personal property and seize and sell it under his fi. fa.

This brings us to the second question, was there in point of fact a sheriff’s sale of the house to the plaintiff ? Of this there was abundant evidence, and it shoiild have been submitted to the jury.

The judgment is reversed and a venire facias dé novo awarded.