Orser v. Storms — 9 Cow. 687

Majority

p. 723

Orser against Storms.^[1]

ALBKNY,

Feb. 1826.

Headnote

A plaintiff having a right to personal property to another, for an indefinite time, may maintain trespass for taking it. Where a father loaned two cows to his daughter, which, or their young, continued in her possession 17 years, sentb. the father might maintain trespass for taking them or their young from the possession of the daughter or daughter’s husband.

One purchases land upon a decree of the court of chancery, lie may enter peaceably and take possession without writ, and being so in possession, may distrain cattle dam ¡ge feasant.

Though somb. if he enter forcibly, he would be subject to an indictment.

Trespass, for taking, driving away, and converting three cows and a calf of the plaintiff, tried at the Westchester circuit, October, 1824, before Williams, C. Judge.

The plea was the general issue, with notice that the cattle were distrained by the defendant damage feasant, and impounded and sold according to the statute, &c.

*At the trial, it appeared that the plaintiff’s daughter was married to an intemperate husband about 19 years before; the plaintiff promised his daughter two cows when she went to housekeeping with her husband, which was about two years after, when the plaintiff, in order to secure to her the use of two cows, loaned them to her and her husband; and they had the cows with their increase afterwards. Two of the cows and the calf in question were the stock of the old cows loaned. The other cow in question was loaned by him to his daughter about three years before the trial. The two cows first loaned had been killed by the husband, and one of them sold by the consent and direction of the plaintiff; and the daughter and her husband purchased another cow with the avails with the like consent. The other was used in the family. The old cows, or their young, had continued in the family from the time of their being loaned; were used, and exchanged for others as occasion required, always with the concurrence of the plaintiff.

The defendant distrained the cattle about the 17th of July 1824, as damage feasant on certain premises which he claimed as the proprietor and possessor, and over which

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he had exercised, various acts of ownership; and after wards caused them to be sold.

The defendant’s counsel moved for a nonsuit, on the ground that the cattle were not in the plaintiff’s possession; but in the possession of the defendant. The motion was overruled.

The counsel then submitted whether a title had been shown in the plaintiff to the two cows and calf raised by the daughter and her husband; and the judge decided that it had.

The defendant then proved that the land on which he distrained the cattle in question was, on the 1st of June, 1824, sold and conveyed to him by a master in chancery, as the land of the plaintiff, and his son-in-law, and his daughter and others, pursuant to a decree of the court of chancery against them. The defendant entered upon the land so purchased by him, in the latter part of June, or on the 1st of July, 1824, turned his horse upon it, and authorized another to depasture *his horse there, who did so There were no cattle on the land when the defendant entered; nor did he meet with any resistance; nor was he forbidden to enter by any one. There was no house on the lot. It appeared that the son-in-law had been in possession of it 17 years before, and up to the time of the entry. Subsequent to his first entry, the defendant had several times turned his horse upon the land and authorized another to turn in a horse, who had done it accordingly ; and once before distraining had, on finding cattle upon the lot, turned them into the street, and turned in his own horse: but on retiring took him away. He had also requested the daughter to give him possession of the lot, which she had declined.

The judge charged the jury, that though the defendant * had the right of possession, he had not made out such an actual possession as entitled him to distrain; and the jury found a verdict for the plaintiff.

R. R. Voris, for the defendant,

moved for a new trial. He insisted that the plaintiff had not made ou a title to the

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young of the two cows first loaned. The defendant had a right to enter and take possession ; (McDougall v. Sitcher, 1 John. Rep. 42 ; Taylor v. Cole, 3 T. R. 292; Hyatt v. Wood, 4 John. Rep. 150 ; Rol. Abr. 738;) and having done so, his right to distrain was complete.

As to the plaintiff’s title, he said the young of tame animals belonged to the hirer of the dam, unless otherwise agreed. (Cowen’s Treat. 160. 8 John. 435 .) The very object of this lending was that the daughter should have the profit of the cows, which included their young. Besides; these cows were promised before marriage; 19 years before the trial; and being delivered upon such consideration, they and their young remaining in the daughter’s use and possession so long, the character of a loan ceased; and the husband became the absolute owner.

A. Ward, contra.

No doubt the plaintiff had such a constructive possession as entitles him to bring trespass. (Putnam v. Wiley, 8 John. Rep. 432 . 1 T. R. 180, 190, id. 12. *2 Saund. 47, a, c, d, k. 2 Bulstr. 268. Bac. Abr. Execution (H.) 1.)

The plaintiff made a mere loan of the cows, and might resume the' possession at any time. (Putnam v. Wiley, 8 John. Rep. 432 .)

The defendant was not in actual possession ; nor had he a right to take possession without ejectment. There is no dispute, that the former possessor was in; and had not abandoned the possession.

The first question to be considered is, whether the plaintiff had such a property in the cattle as to be able to maintain trespass ? For this purpose, he must have had the actual or constructive possession at the time; and the latter is, when he has such a right as to be entitled to reduce the goods to actual possession at any time.^[1] ( 8 John. Rep. 435 . Bac. Abr. Trespass (C.) 2. 1 T. R. 480.) As to one of the cows there is no question; and as to the residue, he does not

[1] [1] Root v. Chandler, 10 Wen. 110

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seem ever to have; relinquished his property; nor had his son-in-law the use of the cows for any specific time; ■ He nó douht intended the cows for the use of his daughter ; but did not mean to place them where her husband, or his creditors, could dispose of them. He acted according to. the dictates of humanity; and will be protected by law, while he retains the right of the property in himself, as that draws after it the right of possession. In. my opinion the plaintiff had a'right to bring this action, and must' recover, unless the defendant had a right to distrain the cattle.

To justify as for á distress damage feasant, the defendant must show that he had actual possession of the land trespassed upon. That he had the legal title as-against the plaintiff there1 is no doubt. Had he a right to take possession himself, or should he be driven to his- action of ejectment ?

In the case of Taylor v. Cole, (3 T. R. 292,) to an action of trespass the defendant pleaded, that by virtue of ajft.fa. he sold the interest in a certain term in the opera house to T. H., who afterwards entered into the house, the door being open; and peaceably and quietly expelled the plaintiff. *To this plea the' plaintiff demurred; and Lord Kenyon says, “ It is true that persons having Only a right, are not to assert that right by force; if any violence be used, it becomes the subject of a- criminal prosecution. The question is, whether a person having a right of possession, may not peaceably assert it, if he do-not transgress the laws of his country. I think he may; for a person who has a right of entry, may enter peaceably; and being in possession, may retain it; and .plead that it is his soil and freehold.”'

The case of Taunton v. Costar, (7 T. R. 427,) was an action of replevin.. The defendant was tenant from year to year. The landl’or-d (the plaintiff) gave notice to quit, but the defendant retained possession after the end of the year. The plaintiff entered, and put his cattle upon the locus in quo ; and the defendant distrained; upon which the plaintiff brought replevin. Lord Kenyon said, “ The case is too plain for argument. Here is a tenant from year to year,

p. 727

whose term expired upon a proper notice to quit; and because he holds over in defiance of law and justice, he now attempts to convert the lawful entry of his landlord into a trespass. If an action of trespass had; been brought^ it is clear that the landlord "could have justified under a plea of liberum tenementum.” This case is very much like the present. It has been decided, that, under a sale by a sheriff upon fi.fa., the tenant becomes quasi tenant at will to the purchaser. The same reason holds in case of a sale by a master in chancery. They are both judicial sales. The defendant then was landlord to the son-in-law; and entered peaceably, after the tenant’s interest had expired. Taunton v. Costar shows that no action of trespass could be sustained against the defendant; nor had the tenant a right to distrain the defendant’s cattle when he had put them in the lot.

In this court, too,, there is abundant authority to justify the entry of the defendant. The case of McDougall v. Sitcher, ( 1 John. 40 ,) decides, that the purchaser of real estate under a fi. fa., may enter peaceably; although the defendant’s property is on the premises, and they are .occupied by the defendant’s servants. In that case, the servants of the former owner occupied the shop in the day,. and locked it at night. *The next morning the purchaser was in possession; and the court said that a purchaser at a sheriff’s sale may enter upon the property left in the situation this was by one who was defendant in the judgment; that he may retain the' possession, and plead it to be his soil and freehold, to any suit brought by the debtor.

In the case of Hyatt v. Wood, ( 4 John, 150 ,) the language of the court is still stronger, and justifies the idea that* as between the parties, and landlord may ent.er by force upon a tenant at sufferance, and turn him out; though as between the landlord and the people, he would be subject to an indictment. (People v. Nelson, 13 John, 340 .).

The judge at the trial of this cause was of opinion that the defendant had not such a possession in fact, as would authorize the distress. Taunton v. Costar, I think, shows that he must be considered in possession. He had, in fact,

p. 728

taken all the possession the property was susceptible of and was the only person lawfully in. He was therefore authorised to distrain. In my judgment, the plaintiff cannot recover, and a new trial must be granted

New trial granted.