Bohlen v. Arthurs

This is an action of replevin brought in the circuit court of the United States for the Western district of Pennsylvania to recover a quantity of square white pine timber logs in rafts. At the trial the court directed a verdict for the defendants, and after a judgment accordingly, the plaintiff has brought this writ of error. The defendants who pleaded, setting up property in themselves, were one Arthurs, assignee in bankruptcy of Baum and Carrier, and one McClure. Each party, plaintiff and defendants, claimed title to the timber under Baum and Carrier and one Osborne, who had title before December 18, 1872, to the lands from which the timber was taken. On that day, Baum, Carrier, and Osborne made a written agreement with one Phillips to the effect that they would convey to him, his heirs and assigns, by warranty deed in fee-simple, the undivided one-half of certain specified lands in the counties of Clearfield and Jefferson, in the state of Pennsylvania, on his paying the consideration and performing the covenants mentioned in the agreement. These were that he should pay them $125 per acre for such undivided one-half, amounting to $206,000; 'payment thereof to be made out of the proceeds of said lands, when and as soon as moneys shall be realized from the sale of any part of said lands, or from the sale of timber thereon, or coal or other minerals therein contained, or lumber manufactured upon said premises in mills thereon to be erected, as hereinafter mentioned and provided for.' Phillips was to pay no interest, and to have the right to pay at any time the consideration money for the whole or any part of the lands, and receive a deed. Phillips agreed 'to advance and pay the one-half of such amounts of money as may be necessary to construct and erect a first-class saw-mill or saw-mills, and such fixtures and machinery appurtenant thereto, and such other and additional improvements' as he (Phillips) might, 'from time to time, consider and determine to be advantageous and necessary for the profitable and full development' of the lands. Then followed these clauses: 'And the said saw-mills, machinery, and other improvements shall be located on such parts of said lands as may be mutually agreed upon by the said parties of the first and second parts herein named, holding as tenants in common and not as partners. And it is hereby expressly covenanted and agreed that the said Wm. Phillips, party of the second part named in this agreement, shall have the right and power to control all improvements made or to be made on said property, and to direct and manage the development of the lands herein described and held by said parties hereto as tenants in common, and not as partners.' Phillips died, and his administrators, in June, 1874, assigned to the plaintiff and one Whitney all the interest of Phillips under the agreement of December, 1872, and in and to the lands described therein. At the same time the heirs at law of Phillips quitclaimed to the plaintiff and Whitney the undivided one-half of the said lands so agreed to be conveyed to Phillips. The timber in question was cut and taken from those lands. Under a contract between the plaintiff and Whitney and one McCracken, made in September, 1876, the latter agreed to cut from the lands a specified quantity of square pine timber for a stipulated price, and deliver it to the plaintiff and Whitney at Pittsburgh. In April, 1877, Whitney assigned to the plaintiff all his interest in that timber. McCracken, in pursuance of this contract, cut from the lands the timber in question. It was taken by the marshal under the writ in this suit, in April, 1877, ans was bonded by the defendants and delivered to them.

The foregoing facts being proved at the trial, the court instructed the jury that the plaintiff had failed to show sufficient property in the timber to sustain replevin, and directed a verdict for the defendants, to which direction the plaintiff excepted.

''Geo. Shiras, Jr.'', for plaintiff in error.

John Dalzell, for defendant in error.

BLATCHFORD, J.