Weeks v. Hackett

• Decision Date: 11 June 1908
• Citation: 104 Me. 264,71 A. 858
• Parties: WEEKS v. HACKETT. MORTON v. SAME.
• Court: Maine Supreme Court

71 A. 858

104 Me. 264

WEEKS

v. HACKETT.

MORTON

v. SAME.

Supreme Judicial Court of Maine.

June 11, 1908.

(Official.)

Exceptions from Supreme Judicial Court, Franklin County.

Separate actions of trover by Orlando Weeks and by Edwin E. Morton against Fessenden E. Hackett. Verdict for each plaintiff, and defendant excepts and moves to set aside the verdicts. Exceptions and motions overruled.

Actions of trover, one by each plaintiff brought to recover one-third in value of a certain quantity of coins of the United States and of certain foreign coins, alleged to have been found by each plaintiff jointly with the other plaintiff and with the defendant in three metallic cans burled and concealed in the soil and underneath the surface of land owned by one Leonard J. Hackett in the town of New Vineyard.

Plea in each case the general issue, with the following brief statement in each case:

"(1) Defendant claims and says he is the owner of the property sued for, and that he found it under such circumstances as makes him the owner of the same as against the plaintiff.

"(2) That if the plaintiff found any part of the same, which the defendant denies, then be is a joint owner or co-tenant with the plaintiff, and that defendant holds the money in trust for the real owner or party that deposited the same in the ground.

"(3) Defendant claims by purchase of one Leonard J. Hackett, who was the owner of the land where the money was found, all the right, title, and interest of the said Leonard J. Hackett in and to the property sued for."

Tried together at the September term, 1907, Supreme Judicial Court, Franklin County. Each plaintiff recovered a verdict for $291.20. The defendant excepted to certain rulings made by the presiding justice during the trial and also filed general motions to have the verdicts set aside.

Argued before EMERY, C. J., and WHITEHOUSE, PEABODY, SPEAR, CORNISH, and KING, JJ.

Frank W. Butler, for plaintiffs.

Joseph C. Holman, for defendant.

WHITEHOUSE, J. These were actions of trover brought by each of these plaintiffs to recover one-third in value of a certain quantity of coins of the United States and of certain foreign coins, alleged to have been found by each plaintiff jointly with the other and with the defendant, Fessenden E. Hackett. It is not in controversy that the coins in question of the aggregate par value of $1,284.67 were found contained in three metallic cans buried and concealed in the soil and underneath the surface of land owned by one Leonard J. Hackett in the town of New Vineyard, and it appears in evidence that after the coins were found, and prior to the commencement of these actions, the defendant, Fessenden E. Hackett, purchased all the right, title, and interest, if any, which Leonard J. Hackett had in and to these coins as owner of the land where they were found.

Three contentions were set up in defense:

(1) That the defendant found the coins under circumstances which made him the sole owner of them as against these plaintiffs.

(2) That if the plaintiffs participated in the finding, they are joint tenants or tenants in common with the defendant, that he is entitled to hold the coins in trust for the true owner, and that the plaintiffs, as tenants in common, cannot maintain trover against him for their respective shares.

(3) That the defendant became the sole owner of the coins by purchase from Leonard J. Hackett, the owner of the premises where they were found.

The presiding justice did not sustain the legal propositions involved in these contentions of the defendant, but instructed the jury, in substance: That gold or silver coin deposited in the soil, as this appeared to have been, becomes what is known in law as treasure-trove, the title to which does not pass with the soil, the owner of the premises where the coin was found acquired no title to it by virtue of his ownership of the laud, and that the defendant consequently acquired no title by purchase from Leonard J. Hackett, that if the coin was purposely buried in the soil and forgotten, or its place of concealment remained undisclosed by reason of the death of the depositor, the finder acquired a right to the possession of it and a qualified property in it, subject to the right of the true owner when he appeared, and in that sense became a trustee for the owner, but, if several participated in the finding so as to become joint finders with equal rights, the ownership pertained to all of them, and one of them was not authorized to hold exclusive possession as against his fellows; and, finally, that since the coins were separable and divisible by weight or count, if the defendant refused to deliver to each of such tenants in common the share to which he was entitled, an action of trover would lie against the defendant for the conversion of such number or portion of the coins as rightfully belonged to each of the joint finders.

The jury returned a verdict in favor of each plaintiff for the sum of $291.20, being one-third of the aggregate market value of the coins, and the cases come to the law court on exceptions to these instructions and on a motion to set aside the verdicts as against the law and the evidence.

1. It is the opinion of the court that the instructions given by the presiding justice were correct, and that the exceptions must be overruled.

"Treasure-trove" is a name given by the early common law to any gold or silver in coin, plate, or bullion found concealed in the earth, or in a house or other private place, but not lying on the ground; the owner of the discovered treasure being unknown. 1 Black. 295; Cyc. vol. 19, p. 339; A. & E. of Law, vol. 28, p. 472; Livermore v. White, 74 Me. 452, 43 Am. Rep. 600; Sovern v. Yoran, 10 Or. 269, 20 Pac. 100, 8 Am. St. Rep. 293. To what extent the doctrine of the English common law in regard to treasure-trove has been merged in this country, into the law respecting the finding of lost property, and whether in modern commercial life, the term "treasure-trove" may be held to include not only gold and silver, but the paper representatives of them, are questions not necessary to be considered here (see Huthmacher v. Harris' Adm'rs, 38 Pa. 499, 80 Am. Dec. 502, and Danielson v. Roberts et al., 44 Or. 108, 74 Pac. 913, 65 L. R. A. 526. 102 Am. St. Rep. 627), for while it is not in controversy that the coins here in question clearly fall within the common-law definition of "treasure-trove," the general rule is established by a substantially uniform line of decisions in the American states, with respect to both lost goods, properly so termed, and treasure-trove, that, in the absence of legislation upon the subject, the title to such property belongs to the finder as against all the world except the true owner and that ordinarily the place where it is found is immaterial. Lawrence v. Buck, 62 Me. 275; Durfee v. Jones, 11 R. I. 588, 23 Am. Rep. 528; Hamaker v. Blanchard. 90 Pa. 377, 35 Am. Rep. 664; Bowen v. Sullivan, 62 Ind. 281, 30 Am. Rep. 172: Danielson v. Roberts, 44 Or. 108, 74 Pac. 913, 65 L. R. A. 526, 102 Am. St. Rep. 627; Armory v. Delamarie, 1 Strange, 504, 1 Smith's Lead. Cases, 631; Bridges v. Havvkesworth, 7 Eng. Law & Eq. 424, 21 L. J. Q. B. 75. The owner of the soil in which treasure-trove is found acquires no title thereto by virtue of his ownership of the land. Reg. v. Thomas, Leigh & Cave Eng. Cr. Cases; 28 A. & E. Enc. of Law (2d Ed.) 473. According to Bracton lib. 3, c. 3, as quoted in Viner's Abridgment: "He to whom the property is shall have treasure-trove, and if he die before it be found, his executors shall have it, for nothing accrues to the King unless when no one knows who hid that treasure." And according to Lord Coke (3 Inst. 132), the common law originally left treasure-trove to the person who deposited it, or, upon his omission to claim it, to the finder. 2 Kent's Com. 458. The rule of the common law respecting the rights and duties of the finder of lost money or goods has been variously modified by the terms and provisions of local statutes of many states, but the provisions of the Maine statutes (Rev. St. c. 100, § 10 et seq.) have no reference to the law of treasure-trove.

In Danielson et al. v. Roberts et al., 44 Or. 108, 74 Pac. 913, 65 L. R. A. 526, 102 Am. St. Rep. 627, in which the facts were strikingly analogous to those at bar, two boys unearthed on the defendant's premises an old tin can containing gold coin of the value of $7,000. The circumstances under which the money was discovered, the rust-eaten condition of the can in which it was contained, and the place of deposit, tended strongly to show that it had been buried for a long time, and that the owner was probably dead or unknown. It was held that the fact the money was found on the premises of the defendants in no way affected the plaintiffs' right to possession or their duty in relation to the treasure, and that they could maintain trover therefor against the defendants to whom they had been induced to deliver the money. In a well-reasoned opinion, the court say:

"Ever since the early case of Armory v. Delamarie, 1 Strange, 504, where it was held that the finder of a jewel might maintain trover for the conversion thereof by a wrongdoer, the right of the finder of lost property to retain it against all persons except the true owner has been recognized. In that case a chimney sweeper's boy found a jewel and carried it to a goldsmith to ascertain what it was. The goldsmith refused to return it, and it was held that the boy might maintain trover on the ground that by the finding he had acquired such a property in the jewel as would entitle him to keep it against all persons but the rightful owner. This case has been uniformly followed in England and America, and the law upon this point is well settled. Sovern v. Yoran, 16 Or. 269, 20 Pac. 100, 8 Am. St. Rep. 293; 19 Am. & Eng. Ency. Law (2d Ed.) 579. But it is argued that property is lost, in the legal sense of...