Fairchild v. Chastelleux

Decision Date01 January 1999
Citation1 Pa. 176
PartiesFAIRCHILD v. CHASTELLEUX.
CourtPennsylvania Supreme Court

Case, for plaintiff in error.

This was an action of trespass quare clausum fregit, brought in the name of the husband alone; it should have been brought in the name of the husband and wife. The land on which the trespass was alleged to have been committed belonged to the husband and wife, under a deed of conveyance to them in fee. They were not joint-tenants, but tenants respectively of the entirety of the fee, with the right of survivorship. The husband was not the exclusive possessor; he could have no possession adverse to the possession of the wife. The injury complained of was, that the inheritance was injured. The inheritance of the wife was injured just as much as that of the husband, and therefore they ought to have sued jointly. They each had an entirely of interest. He cited Roper on Husband and Wife, 51; 31 Law Lib. 39; Cro. Car. 506; 32 Law Lib. 136; Fairchild v. Chastelleux, 8 Watts, 412; Klapp v. Inhabitants of Slanton, 10 Pick. 463, 470.

Elwell and Williston, for the defendant in error, argued, that the action was well brought in the name of the husband alone, although his wife might have been joined with him; they hold the title to the land by entireties, each owning the whole. The interest of the wife is not so great in lands thus held, as in lands held by the husband and wife, in right of the wife. And yet the husband may maintain an action in his own name for entering upon the wife's land and felling the timber trees. 2 Comyn's Dig. 247, title Baron and Feme, in note; Id. 251; 1 Rob. 348; 2 Vent. 195; Fairchild v. De Chastelleux, 8 Watts, 412. Clearly, then, he may sue alone for cutting timber upon lands in which he has an interest jointly with his wife. He has the entire control of lands thus situate. He may mortgage it for his life; or make a lease which will authorize the lessee to recover possession in ejectment. Jackson v. McConnell, 19 Wend. 175; Barber v. Harris, 15 Wend. 615. He may, without impeachment of waste, cut and use the timber for his own purposes. The plaintiff had the possession of the land; if not the actual, he, at least, had the constructive possession. The injury was to his possession and also to his freehold, and therefore the law gives to him redress by action.

The opinion of the court was delivered by KENNEDY, J.

This is an action of trespass, brought in the court below by Cæsar Laurent Comte de Chastelleux, the defendant in error, against Abel Fairchild and Reuben White, the plaintiffs in error, for breaking into the close or land of the said defendants in error, with force and arms, and there, without the consent of the latter, felling, cutting down, and carrying away four hundred white-pine trees there growing, of the value of one thousand dollars, and converting them to their own use. The land, upon which the trespass was committed, was held by Chastelleux and Louise Zepharine de Damas, his wife, under a deed conveying the same to them in fee, from Vincent Le Roy, who had a regular title thereto, at the time, from the Commonwealth of Pennsylvania.

The errors assigned are, that the court below, on the trial of the cause, erred in charging the jury that the action could be sustained in the name of the plaintiff alone, when, by the laws of the land, it should have been brought in the name of the plaintiff and his wife.

Second. That the court erred in charging the jury that the defendants could not defend under the purchase made by one of them from Jeremiah Heydecker.

Third. That the court erred in charging, that the purchase of the timber of Heydecker could not be considered in mitigation of damages.

The fourth error is, that the verdict and judgment were rendered in favour of the plaintiff below, when, by the laws of the land, they should have been in favour of the defendants below.

This last error amounts to nothing; and the second and third errors may be dismissed with the observation, that as it does not appear that Heydecker ever purchased the timber cut and taken by the defendants below from the plaintiff, who, with his wife, were the unquestionable owners of it; nor that he had any authority, either to cut or to sell and dispose of the same, he could give no right or authority to the defendants, or either of them, to cut and take it away. The defendants, therefore, acted at their peril in cutting and taking the timber; and, so far as the interest of the plaintiff below is concerned, it is no mitigation for them to say, that they confided in any right or authority which Heydecker might have said he had to or over the timber. If Heydecker pretended to have any thing of the kind, it was their place to look into it, and to see that it was well founded.

The principal question, however, arises on the first error, and would seem to require a more particular notice than has been given to the others. Under the deed of conveyance from Vincent Le Roy, the plaintiff below and his wife took and held the estate in the land thereby given to them by entireties and not by moieties. They held per tout et non per my, so that the husband could not, by his conveyance alone, divest his wife of her interest, if she should survive him, in which latter event she would be entitled to the whole. Co. Lit. 187; Freestone v. Parrott, 5 Term Rep. 652; Beck v. Andrews, 2 Vern. 120; Pre. in Chan. 1; Green v. King, 2 Blk. Rep. 1211; Day v. Wilson, 4 Barn. & Ald. 303, and 2 Preston on Abstracts, 39. But notwithstanding they held the fee, not in moieties, but in severalty, with the right of survivorship, so that neither can alien any part thereof without the consent of the other, — Jackson v. Stevens, 16 Johns. 110; Corson v. Cainny, 20 Johns. 301, and Jackson v. McConnell, 19 Wend. 175, — yet the husband may be said to have the absolute control of the estate during his life, and may convey or mortgage it during that period. Barber v. Harris, 15 Wend. 615. And it would seem to be reasonable, that if a husband can maintain, in his own name alone, such action as the present for a similar trespass and injury committed on the land of his wife, and...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT