15 Pa. 507 (Pa. 1851), Harlan v. Harlan

Citation:15 Pa. 507
Opinion Judge:ROGERS, J.
Party Name:Harlan v. Harlan.
Attorney:The case was argued by Lewis, for plaintiff in error W. Darlington, for defendants.
Case Date:April 21, 1851
Court:Supreme Court of Pennsylvania
 
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Page 507

15 Pa. 507 (Pa. 1851)

Harlan

v.

Harlan.

Supreme Court of Pennsylvania.

April 21, 1851

December Term 1850

1. In Pennsylvania, replevin lies for the property of one in the possession of another, whether the claimant ever had possession or not, and whether his property be absolute or qualified, provided he has the right of possession.

2. Machinery in a cotton or woollen manufactory which is necessary to constitute it, is a part of the freehold, and as such will pass by the deed of the owner conveying the real estate, or by the deed of the sheriff who sells the same under execution against the owner; and therefore, where a fixture, a part of the machinery of the mill, was detached by the former owner after a sheriff's sale, it was held that the purchaser of the real estate at said sale could maintain replevin for the same against the person who detached it; and that the plaintiff in the action could make title to the chattel only by proving title to the land from which it had been severed, was no valid objection to the action of replevin.

3. Where the plaintiff in an execution issued on a judgment which bound a woollen and cotton factory and machinery in it constituting a part of the mill, directed the sheriff to levy on the real estate, and stated that the machinery had been assigned or belonged to another, and that he had nothing to do with it; and said to another after the sale that he had purchased the factory and real estate, but not the machinery; this direction and declarations, if made in ignorance of his rights, and without consideration, and without the intention of relinquishing his rights, will not estop him from asserting his title to the machinery under his purchase at the sheriff's sale. If the real estate brought less at the sheriff's sale in consequence of his mistake of the law, it may have been a reason for setting aside the sale, but will not estop the purchaser from maintaining replevin for parts of the machinery, severed by another after the sheriff's sale.

ERROR to the Common Pleas of Chester county.

The plaintiff in error was plaintiff below. The suit was brought by Josiah Harlan against Mary Harlan, Anne Harlan, and Edward Harlan, to recover two articles of machinery, viz. a picker valued at $150, and a speeder of the value of $90.

In 1833, Edward Harlan owned the Glenville estate, in West Fallowfield, Chester county, consisting of 290 acres of land or thereabouts, water-power, large woollen and cotton factory provided with machinery, and other valuable buildings. Becoming embarrassed, he made a general assignment, some time in that year, for the benefit of his creditors, to John Moss, of Philadelphia, who conveyed the real estate to Mary Harlan, and, treating the machinery as personal property, sold it to Sarah Harlan.

The business of manufacturing then proceeded in the name of Sarah Harlan, being conducted by Edward, till 1840, when, becoming embarrassed, she sold the machinery to Mary, who in the same year leased to James Wilson, Sarah's clerk and foreman, who conducted the business till April 1841. Sarah having made an arrangement with her creditors, resumed business at that time, with Edward as her manager. In 1843, Sarah, becoming again involved in difficulties, sold the machinery to Mary, together with all the stock in the mill.

Edward, having in that year availed himself of the benefit of the bankrupt law, rented the mill and machinery of Mary Harlan, and entered into business on his own account. He again failed in 1846. Mary Harlan then leased the mill and machinery to Anne, who commenced manufacturing in January, 1847, Edward still being manager.

Mary Harlan being indebted to Josiah Harlan in about $10.900, secured by two judgments entered in January 1843, and revived July 1, 1847, execution was issued on one of them, and the real estate of Mary Harlan ( the Glenville property ) was sold for $11,700, subject to a mortgage for $5000 and interest. Josiah Harlan being the purchaser, obtained the deed of the sheriff on the 27th day of April, 1848, and on the 1st and 3d days of May following, gave notice to Mary and Anne Harlan to quit in three months.

About the time the real estate was levied on, Mary Harlan assigned all her property to Ziba Pyle, Esq., for the benefit of her creditors: the eclipse speeder was embraced in the inventory filed, and afterwards sold by Mr. Pyle at private sale, to Mr. Largarenne, of Philadelphia, but not detached or removed from the mill.

After the expiration of the three months, the defendants removed from the property, taking with them all the machinery of the mill, including the speeder and picker which constitute the subject of this suit. At the time the machinery was removed, Josiah Harlan had possession of the dwelling and Glenville farm, but the keys of the factory were still in Edward's hands, and he refused to give him possession.

This suit was afterwards instituted to recover a part of the machinery removed.

The question was, whether the suit could be maintained.

The judge charged, in substance, that whether the suit could be maintained depended upon whether the possession by the defendants of the factory and machinery against the plaintiff was adverse and under an assertion of right, without regard to the validity of the claim or the actual rights of the parties; that if it was, the plaintiff could not recover; and that there was evidence of such adverse possession and assertion of right.

The second question arose on a bill of exceptions to the testimony of the sheriff.

The defendants offered to prove, by Brinton Darlington, the sheriff, that he was directed to levy on the real estate, and not on the machinery, which he said had been assigned to Mr. Pyle. The plaintiff objected, and the objection was overruled, and exception taken. He testified as follows:--

The fi. fa. was placed in my hands, I don't recollect by whom. General H. came to my office same day. I asked him what I was to do down there. He told me I was to levy on the real estate. I asked him if there was no personal property. He...

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