author: Ruggles, J. Bronson, Ch. J.

text:
    Silsbury & Calkins vs. McCoon & Sherman.
    Whefe a quantity of corn was taken from the owner by a wilful trespasser and converted by him into whisky, held, that the property was not changed, and that the whisky belonged to the owner of the original material.
    And held further, that a creditor having an execution against the owner of the corn,' might seize the whisky and sell it to satisfy his debt.
    If a chattel wrongfully taken retains its original form and substance, or may be reduced to its original materials, it belongs to the original owner; and this rule, it seems, holds against an innocent purchaser from the wrongdoer, without regard to the increased value bestowed by him upon the chattel.
    But if the chattel be converted by an innocent purchaser or holder into a thing of a different species, as where Wheat is made into bread, olives into oil, or grapes into wine, the original owner can not reclaim it.
    There is no such distinction, however, in favor of a wilful wrongdoer. He can acquire no property in the goods of another by any change wrought in them by his labor or skill, however great the change may be, provided it can be proved that the improved article was made from the original material. There ¡s no difference between the civil and the common law in this respect. ®
    This was an action of trover for a quantity of whisky. On the first trial before Willard, circuit judge, at the Montgomery circuit, in May, 1843, the plaintiffs were nonsuited. The supreme court on bill of exceptions set asi.de the nonsuit, and ordered a new trial. (See 6 Hill, 425.) The case was again tried in November, 1844, before the same judge. On that trial it was proved, that one Hackney, a deputy of the sheriff of Montgomery county, on the 22d of March, 1842, by virtue of a fi. fa. issued on a judgment in the supreme court in favor of McCoon and Sherman, the defendants, against Uriah Wood, sold the whisky in question, being about twelve hundred gallons, having made a previous levy thereon; and that upon the sale the defendants became the purchasers, and afterwards converted it to their own use. The whisky was levied on and sold at the distillery of the plaintiffs, who forbade the sale.
    The plaintiffs having rested, the defendants offered to prove, in their defence, that the whisky was manufactured from com belonging to Wood, the defendant in the execution; that the plaintiffs had taken the com and manufactured it into whisky without any authority from Wood, and knowing at the time they took the corn that it belonged to him. The plaintiffs’ counsel objected to this evidence, insisting that Wood’s title to the corn was extinguished hy its conversion into whisky. The circuit judge sustained the objection and refused to receive the evidence. The defendants’ counsel excepted. The plaintiffs’ had a verdict for the value of the whisky, which the supreme court refused to set aside. (See 4 Denio, 332.) After judgment the defendants brought error to this court, where the cause was first argued by Mr. Hill, for the plaintiffs in' error, and Mr. Reynolds, for the defendants in error, in September, 1848. The judges being divided in opinion, a re-argument was ordered, which came on in January last.

      N. Hill, Jr. for the plaintiffs in error.

      M. T. Reynolds, for the defendants in error.

         The following is the substance of the argument of Mr. Hill. It is deemed worth preserving as the result of a careful examination into a branch of the law both interesting and important. I. Unless it can be shown that there is an essential difference between the common and civil law, on the question in this case, the defendants in error clearly acquired no title by fraudulently converting Wood’s corn into whisky. By the general rule of the Roman civil law, proceeding upon the principle that no one can be deprived of his property without his consent, title could not be acquired by any change wrought in the materials of another, however great the change, or the labor of producing it. The only exception to the rule was, where the change rendered the new product incapable of being reduced to its original materials. (Wood’s Inst. 92, Lond. ad. 1804; 1 Brawn’s Civil and Adm. Law, 240, 241.) The exception, however, was carefully qualified, so as to limit it to the case of labor honestly bestowed, and avoid encouraging toilful invasions of the rights of property. Hence it was never allowed, where the change in the materials, however great, was wrought with knowledge that they belonged to another. “ If any one shall make wine with my grapes, oil with my olives, or garments with my wool, knowing they are not his own, he shall be compelled by action to produce the said wine, oil, or garments.” (Digest, Lib. 10, til. 4, leg. 12. § 3.) “ There must, in order to give title to the workman, be a change of species, and the materials must have been taken m ignorance of their being the -properly of another.” (1 Brown’s Civil and Adm. Law, 240, 241; Wood’s Inst. 92, Lond. ed. 1704 ; 5 John. Rep. 349, 350 ; 6 id. 169, 170.) The civil law, therefore, in dealing with the case oí fraudulent accession, treated the workman as one who had volmilcered to serve the owner of the material without compensation. “ He who knows the material is another’s, ought to be considered in the same light as if he had made the species in the name of the owner, to whom also he is to be understood to have given his labor; like the case of him who knowingly builds on another’s ground.” ( Vinnius’ Inst. tit. 1, pl. 25, De specificatione.) “ If it is known that the grapes, &c. are another’s, and yet thereof he [the workman] proceeds to make his wine, &c. he shall lose Ms labor and wotkmanship; the whole shall accrue to the owner.” (Wood’s Inst. 92, Lond. ed. 1704.)
      II. There is no evidence that the common law differs in any respect from the civil law, on the question in this case. On the contrary, there is strong reason to believe that both systems are alike.- The civil law on the general subject of accession, especially accession by specification, confusion and adjunction, was adopted by the English as early as the time of Bracton, and there is no case showing that it was not adopted precisely as it stood in the Pigest. (Long’s Discourses, 87 to 89, in col. 60 of Law Library; sec 15 Eng. Com. Law, 405, 406.) The doctrine laid down by Blackstone, and in the Year Book, (5 Hen. 7, fol. 15,) shows merely that the common and civil law are alike in respect to bona fide accession; not that they differ as to fraudulent accession. (Sec 2 Black. Com. 404; 4 Denio, 335, note (a.) ) Chancellor Kent says: “ The English law will not allow one man to gain title to the property of another upon the principle of accession, if he took the other’s property wilfully as a trespasser.” He assumes that the civil and common law on this subject are identical, and this has been expressly held by our courts from a very early period. (2 Kent’s Com. 363; 5 John. 348, 349; 6 id. 168, 169; 2 Rawle’s Rep. 423, 427 ; 9 John. Rep. 362, 363; 8 Wend. 508.) In the kindred case of accession by confusion or intermixture, the common law has gone even beyond the civil law in discriminating between unintentional and wilful wrongs. There, if the intermixture be by consent or accident, the proprietors become tenants in common. But if it be wilful, the common law, “ to guard against fraud, gives the entire properly, without any account, to him whose original dominion is invaded, and attempted to be rendered uncertain, without his consent.” (Story on Bailm. § 40; 21 Pick. 208, 304, 305; 7 Shepley, 287; 11 Metcalf 493.)
      III. The above authorities show affirmatively that the distinction between bona fide and fraudulent accession is a part of the common law; and it is believed that no decision has ever been made in this country or in England which shows the contrary. The distinction, moreover, has been recognized in various other departments of the common law relating to the security of rights and property, and is in harmony with its general frame work and policy on that subject. The object at which it aims is not to punish wrongdoers, but to prevent their aggressions, and thus render punishment unnecessary. (See 2 Bosw. Life of Johnson, 512, 543, Cro. ed. 1831; 1 Story’s Eq. 123, 3d ed.) It is a fundamental maxim of the common law, as it is of the civil law, that no one can acquire title by his own ad, without the owner’s consent; nor is an exception ever made in favor of an intentional wrongdoer, but only in favor of bona fide acts, and then with great caution. (4 Denio, 327, 333; 10 John. Rep. 287, 288; 20 Wend. 275, 276, 277; 2 Kent’s Com. 323; 11 Wend. 80.) It is also a maxim of the common and civil law that a parly can acquire no right or advantage by his own ivrong, whether it consist in violence or fraud. (Broom’s Legal Max. 317, 318; 3 Hill, 282; 12 Pick. 270, 275 ; 4 Hill, 437, 439; 5 id. 158;) The common law, moreover, like the civil law, treats those who expend money or labor upon the property of another, knowing that they arc doing wrong, as volunteer servants or agents, and coippeb them io lose what Ihcy thus expend. (4 Paige’s Rep. 62; Woodf. Land.

        and Ten. 306, ed. of 1804; 1 Hill’s Rep. 240, note; 5 Mees. & Welsb. 351, 354; 8 Wend. 505, 508.) Nor does the common law, any more than the civil law, regard the degree of change wrought in the property as material, but allows the owner to follow it through all its changes; e. g. where money has been fraudulently converted into land or slocks, &c. (Ambler, 409; 10 Ves. 516, 517; 3 Maule & Selw. 562, 574, 575; 2 Grattan’s Rep. 544; 3 Maule & Selw. 189.) And there is no reason for supposing that the common law has relaxed any of its ancient rigor in this respect. “ As civilization has progressed, the law has tended much more strongly than it formerly did to overthrow every thing which is built upon violence or fraud.” (5 Hill, 158, per Bronson, J.) In the present case, the act of the plaintiffs below in taking the property, and their subsequent acts in changing its species, were each and all, intentional trespasses and frauds upon Wood. It is difficult to see, therefore, how the court can uphold their claim without adjudging directly that title may be acquired by wilful trespass tend fraud; a mode of acquisition not recognized' by any common law authority.
      IV. The lirst argument of the court below, in favor of this mode of acquisition, is inferred from the absence of direct precedent against it. (4 Denio, 334, 335.) This argument proves nothing, if it'be true, as has already been shown, that the general principles of the common law are the other way. Those who affirm the exception, ought to prove it. (3 Barn, & Ald. 245; 3 Dwrnf. ifi Bast, 63 ; Ramon Leg. Judgm. 112, 113.) Bqt there are numerous precedents against this mode of acquisition. The principle on which it rests has been uniformly repudiated, whenever the point has been presented. (5 John. Rep. 348, 349 ; 6 id. 168, 169 ; 2 Rawle’s Rep. 423, 427 ; 9 John. Rep. 362, 363; 8 Wend. 508; 2 Kent’s Com. 363 ; Story on Bailm. § 40; 21 Pick. 398, 304, 305; 7 Snepley, 287; 11 Metcalf, 493.) The silence of Blackstone on the question is entitled to no weight. His object was to present a general outline of the law, without tracing its subordinate limits and minute qualifications. (2 Black. Com. 404; 1 id. 34, 35; 1 Schoale & Lefroy, 327.) The case in the Year Book, 5 Hen. 7, jol. 15, was plainly one where the workman acted honestly; and yet it was held that he acquired, no tille. The court were not called upon to speak as to fraudulent a0ccession, and therefore did not. (See 4 Denio, 355, note (a.) )
      V. Another argument of the court below is founded upon the assumption that, to allow the owner to appropriate the labor of the wrongdoer, would be an unjust measure of redress and punishment, inconsistent with the general policy and spirit of the common law. (4 Denio, 336, 337.) Considerations of this character are foreign to the case. The true question is, whether the wilful trespasser shall be prevented from profiting by his own wrong, and getting title by his own fraudulent act, without the owner’s consent. He is not punished by being compelled to lose his misdirected labor, but simply Unvaried in his fraudulent object. (See 4 Denio, 338, 339.) That it is not unjust to compel the workman to lose his labor, instead of compelling the owner to lose his title, has been held in a series of decisions which the court below do not question; e. g. where leather is made into bools or shoes, cloth into a garment, trees into rails, shingles or coals. (Sec 4 Denio, 333, 334 ; 5 John. Rep. 348,349 ; 6 id. 168, 169 ; 2 Rawle’s R. 423, 427; 9 John. Rep. 362, 363; 8 Wend. 508.) This rule prevails even where the workman has acted innocently; and if it be just in that case, afm'liori is it where he has acted fraudulently. The law relating to accession by confusion or intermixture, compels the fraudulent wrongdoer to Lose his property, as well as his labor, be it more or less. (Story on Bailm. § 40 ; 21 Pick. 298 ; 7 Shepl. 287; 11 Metc. Rep. 493.) The court below ascribe to the ancient common law an undue degree of leniency toward violations of the rights of property. It protected property by punishing offences against it with extreme rigor, outstripping the civil law in this respect, and even hanging men who stole to the value of above twelve pence. (4 Black. Com. 236, 237.)
      VI. The third and last argument of the court below is founded upon a supposed difficulty of tracing the connection between the materials taken from the owner, and the new product or species. (4 Denio, 237, 238.) This argument would make the title depend on the question whether the party could probably establish it or not on the trial, and is therefore wrong in principle. The supposed difficulty necessarily exists where leather has been made into bools or shoes, trees into boards, shingles, rails or coal, iron into tools or nails, gold into a cup, &c.; and yet it has never been allowed as an objection to following the property. (6 John. Rep. 169; 5 id. 349, 350 ; 2 Rawle, 427 ; 2 Chilly’s Bl. 404, note (12) by Christian ; 4 Denio, 333, 334; and see note la.) ) The difficulty exists ip a still greater degree where money has been converted into lands, stocks, notes, &c.; and yet the substitute or product may always be claimed if identified by evidence. (10 Vesey, jun. 516, 517; Ambler, 409; 3 Maule & Selw. 562, 575, 578, 579 ; 2 Grattan’s Rep. 544.)
      VII. It is intimated in the opinion of the court below that the doctripe which allows the owner to seize the new product leads to absurd consequences; “ for,” it said, “ if he may trace his title from com to whisky, he may follow it as long as matter endures.” (4 Denio, 338, 339.) If the property undergoes no change except such as is wrought with intent to deprive the oxvnpr of his Uüe, it is right that the intent should be frustrated; for there is clearly nothing meritorious in that species of labor. But if the property passes into the hands of a purchaser, or other person, who makes a similar change in it, supposing it to be his own, both the civil and the common law agree that this transfers the title. The case then ^becomes one of innocent or bona fide accession. (See points I and II.) Again, a bona fide purchaser would probably get the title, though he had made no change since he purchased. But if not, his case would only be like that of others purchasing from persons having no title. (See 2 Grattan’s Rep. 554; 4 Denio, 327, 328.) Another limit to the owner’s right of following the property is found in the doctrine of adjunction; I. e. where the new product or species becomes united as an accessary to something which is the principal, as boards, nails or paint, to a house, &c. (Wood’s Inst. 93 ; Brown’s Leg. Max. 203 ; 7 John. Rep. 473, 474, 475; 1 Brown’s Civ. and Adm. Law, 241.) “ This rule holds, though the addition of another person’s goods to my own was dishonestly contrived; for here, only regard is had to the things joined, and not to the person, as before in specification.” ( Wood’s Inst. 93.)
      VIII. We submit, therefore, 1st. That the civil law, from which the common law on this subject was derived, made a plain distinction between bona fide and fraudulent accession, holding that no title could in any case be gained by the latter. 2d. That this principle is a part of the common law, having been adopted along with the general law of accession, and expressly recognized by various common law decisions; and 3d. That the arguments against it are founded upon views not sanctioned by the common law, but at variance with it.
      IX. We submit further, that if the civil law is to be departed from in any respect, it should be by repudiating all distinction founded upon the degree of. change wrought in the property, and holding that in no case can property be acquired by one’s own act, without the owner’s consent. This would be far more in jharmony with the maxims and policy of the common law than the principle on I which the court below have acted; viz. that one may acquire another’s title with- ¡ out his consent, by a series of intentional trespasses, provided he perseveres so as to produce a change of species.

      X. If we are right as to the main question in this case, it follows that Wood was the owner of the whisky at the lime of the levy and sale, and that the defendants below acquired title to it. There was no pretence on the trial that Wood had elected to waive his title, and resort to his remedy in trespass or trover for wrongfully taking the corn. On the contrary, the only ground there taken was, that the title had been changed by manufacturing the corn into whisky.
        Wood could have authorized any one to seize the whisky, and the execution was as effectual an authority as any which Wood could have given. True, the defendants in error,may be still liable to Wood for the trespass in taking the property, but not for the property itself. It would be an answer to an action by Wood for the property, that it had been seized by the sheriff and applied to pay his debt. (24 Wend. 379 ; 2 Hill, 201.)

   Ruggles, J.

It is an elementary principle in the law of all civilized communities, that no man can be deprived of his property, except by his own voluntary act, or by operation of laxv. The thief who steals a chattel, or the trespasser who takes it by force, acquires no title by sucli wrongful taking. The subsequent possession by the thief or the trespasser is a continuing trespass ; and if during its continuance, the wrongdoer enhances the value of the chattel by labor and skill bestowed upon it, as by sawing logs into boards, splitting timber into rails, making leather into shoes, or iron into bars, or into a tool, the manufactored article still belongs to the owner of the original material, and he may retake it or recover its improved value in an action for damages. And if the wrongdoer sell the chattel to an honest purchaser having no notice of the fraud by which it was acquired, the purchaser obtains no title from the trespasser, because the trespasser had none to give. The owner of the original material may still retake it in its improved state, or he may recover its improved value. The right to the improved value in damages is a consequence of the continued ownership. It would be absurd to say that the original owner may retake the thing by an action of replevin in its improved state, and yet that he may not, if put to his action of trespass or trover, recover its improved value in damages. Thus far, it is conceded that the common law. agrees with the civil.^

They agree in another respect, to wit, that if the chattel wrongfully taken, afterwards come into the hands of an innocent holder who believing himself to be the owner, converts the chattel into a thing of different species so that its identity is destroyed, the original owner cannot reclaim it. Such a change is said to be wrought when wheat is made into bread, olives into oil, or grapes into wine. Ití a case of this kind the change in the species of the chattel is not an intentional wrong to the original owner. It is therefore regarded as a destruction or consumption of the original materials, and the true owner is not permitted to trace their identity into the manufactured article, for the purpose of appropriating to his own use the labor and skill of the innocent occupant who wrought the change; but he is put to his action for damages as for a thing consumed, and may recover its value as it was when the conversion or consumption took place.

There is great confusion in the books upon the question what constitutes change of identity. In one case, (5 Hen. 7,fol. 15,) it is said that the owner may reclaim the goods so long as they may be known, or in other words, ascertained by inspection. But this in many cases is by no means the best evidence of identity ; and the examples put by way of illustration serve rather to disprove than to establish the rule. The court say that if grain be made into malt, it can not be reclaimed by the owner, because it can not be known. But if cloth be made into a coat, a tree into squared timber, or iron into a tool, it majri Now as to the cases of the coat and the timber they may or may not be capable of identification by the senses merely ; and the rule is entirely uncertain in its application ; and as to the iron tool, it certainly can not be identified as made of'the original material, without other evidence. This illustration therefore, contradicts the rule. In another case, (Moore’s Rep. 20,) trees were made into timber and it was adjudged that the owner of the trees might reclaim the timber,11 because the greater part of the substance remained.” But if this were the true criterion it would embrace the cases of wheat made into bread, milk into cheese, grain into malt, and others which are put in the books as examples of a change of identity. Other writers say that when the thing is so changed that it can not be reduced from its new form, to its former state, its identity is gone. But this would include many cases in which it has been said by the courts that the identity is not gone; as the case of leather made into a garment, logs into timber or boards, cloth into a coat, &c. There is 'therefore no définite settled rule on this question; and although the want of such a rule may create embarrassment in a case in which the owner seeks to reclaim his property from the hands of an honest possessor; it presents no difficulty where he seeks to obtain it from the wrongdoer ; provided the common law agrees with the civil in the principle applicable to such a case.

The acknowledged principle of the civil law is that a wilful wrongdoer acquires no property in the goods of another, either by the wrongful taking or by any change wrought in them by his labor or skill, however great that change may be. The new product, in its improved state, belongs to the owner of the original materials, provided it be proved to have been made from them; the trespasser loses his labor, and that change which is regarded as a destruction of the goods, or an alteration of their identity in favor of an honest possessor, is not so regarded as between the original owner and a wilful violator of his right of property.

These principles are to be found in the digest of Justinian. (Lib. 10, tit. 4, leg. 12, § 3.) “If any one shall make wine with my grapes, oil with my olives, or garments with my wool, knowing they are not his own, he shall be compelled by action to produce the said wine, oil or garments.” So in Vinnius’ Institutes, tit. 1, pi. 25. “ He who knows the material is another’s ought to be considered in the same light as if he had made the species in the name of the owner, to whom also he is to be understood to have given his labor.”

The same principle is stated by Puifendorf in his Law of Nature and of Nations, (b. 4, ch. 7, § 10,) and in Wood’s Institutes of the civil law, p. 92, which are cited at large in the opinion of Jewett J. delivered in this case in the supreme court, (4 Denio, 338,) and which it is unnecessary here to repeat. In Brown’s Civil and Admiralty Law, p. 240, the writer states the civil law to be that the original owner of any thing improved by the act of another, retained his ownership in the thing so improved, unless it was changed into a different species ; as if his grapes were made into wine, the wine belonged to the maker, who was only obliged to pay the owner for the value of his grapes. The species however must be incapable of being restored to its ancient forrií; and the materials must have been taken in ignorance of their being the property of anothei'.

But it was thought in the court below that this doctrine had never been adopted into the common law, either in England or here; and the distinction between a wilful and an involuntary wrongdoer herein before mentioned, was rejected not only on that ground, but also because the rule was supposed to be too harsh and rigorous against the wrongdoer.

It is true that no case has been found in the English books in which that distinction has been expressly recognized ; but it is equally true that in no case until the present has it been repudiated or denied. The common law on this subject was evidently borrowed from the Roman at an early day; and at a period when the common law furnished no rule whatever in a case of this kind. Bracton, in his treatise compiled in the reign of Henry III, adopted a portion of Justinian’s Institutes on this subject without noticing the distinction; and Blackstone, in his commentaries, vol. 2, p. 404, in stating what the Roman law was, follows Bracton, but neither of these writers intimate that on the point, in question there is any difference between the civil and the common law. The authorities referred to by Blackstone in support of his text are three only. The first in Brooks’ Abridgment, tit. Property 23, is the case from the Year Book 5 H. 7, fol. 15, (translated in a note to 4 Denio, 335,) in which the owner of leather brought trespass for taking slippers and boots, and the defendant pleaded that he was the owner of the leather and bailed it. to J. S. who gave it to the plaintiff, who manufactured it into slippers and boots, and the defendant took them as he lawfully might. The plea was held good and the title of the owner of the leather unchanged. The second reference is to a case in Sir Francis Moore’s reports, p. 20, in which the action was trespass for taking timber, and the defendant justified on the ground that A. entered on his land and cut down trees and made timber thereof, and carried it to the place where the trespass was alledged to have been committed, and afterwards gave it to the plaintiff and that the defendant therefore took the timber as he lawfully might. In these cases the chattels had passed from the hands of the original trespasser into the hands of a third person; in both it was held that the title of the original owner was unchanged, and that he had a right to the property in its improved state against the third person in possession. They are in comformity with the rule of the civil law; and certainly fail to prove any difference between the civil and the common law on the point in question. The third case cited is from Popham’s reports, p. 38, and was a case of confusion of goods. The plaintiff voluntarily mixed his own hay with the hay of the defendant, who carried the whole away for which he was sued in trespass ; and it was adjudged that the whole should go to the defendant; and Blackstone refers to this case in support of his text, that “ our law to guard against fraud gives the entire property, without any account to him whose original dominion is invaded and endeavored to be rendered uncertain without his own consent.” The civil law in such a case would have required him who retained the whole of the mingled goods to account to the other for his share, (Just. Inst. lib. 2, tit. 1, § 28;) and the common law in this particular-appears to be more rigorous than the civil; and there is no good reason why it should be less so in a case like that now in hand, where the necessity of guarding against fraud is even greater than in the case of a mingling of goods, because the cases are likely to be of more frequent occurrence. Even this liability to account to him whose conduct is fraudulent,, seems by the civil law to be limited to cases in which the goods are of such a nature _ that they may be divided into shares or portions, according to the original right of the parties; for by that law if A. obtain by fraud the parchment of B. and write upon it a poem, or wrongfully take' his tablet and paint thereon a picture, B. is entitled to the written parchment and to the painted tablet, without accounting for the value of the writing or of the picture. (Just. Inst. lib. 2, tit. 1, §§ 23. 24.) Neither Bracton nor Blackstone have pointed out any difference except in the case of confusion of goods between the common law and the Roman, from which on this subject our law has mainly derived its principles.

So long as property wrongfully taken retains its original form and substance, or may be reduced to its original materials, it belongs, according to the admitted principles of the common law, to the original owner, without reference to the degree oi improvement, or the additional value given to it by the labor of the wrongdoer. Nay more, this rule holds good against an innocent purchaser from the wrongdoer, although its value be increased an hundred fold by the labor of the purchaser. This is a necessary consequence of the continuance of the original ownership.

There is no satisfactory reason why the wrongful conversion of the original materials into an article of a different name or a different species should work a transfer of the title from the true owner to the trespasser, provided the real identity of the thing can be traced by evidence. The difficulty of proving the identity is not a good reason. It relates merely to the convenience of the remedy, and not at all to the right. There is no more difficulty or uncertainty in proving that the whisky in question was made of Wood's corn, than there would have been in proving that the plaintiff had made a cup of his gold, or a tool of his iron; and yet in those instances, according to the English cases, the proof would have been unobjectionable. In all cases where the new product can not be identified by mere inspection, the original material must be traced by the testimony of witnesses from hand to hand through the process of transformation.

Again. The court below seem to have rejected the rule of the civil law applicable to this case, and to have adopted a principle not heretofore known to the common law; and for the reason that the rule of the civil law was too rigorous upon the wrongdoer, in depriving him of the benefit of his labor bestowed upon the goods wrongfully taken. But we think the civil law in this respect is in conformity not only with plain principles of morality, but supported by cogent reasons of public policy; while the rule adopted by the court below leads to the absurdity of treating the wilful trespasser with greater kindness and mercy than it shows to the innocent possessor of another man’s goods. A single example may suffice to prove this to be so. A trespasser takes a quantity of iron ore belonging to another and converts it into iron, thus changing the species and identity of the article: the owner of the ore may recover its value, in trover or trespass; but not the value of the iron, because under the rule of the court below it would, be unjust and rigorous to deprive the trespasser of the value of his labor in the transmutation. But if the same trespasser steals the iron and sells it to an innocent purchaser, who works it into cutlery, the owner of the iron may recover of the purchaser the value of the cutlery, because by this process the original material is not destroyed, but remains, and may be reduced to its former state; and according to the rule adopted by the court below as to the change of identity the original ownership remains. Thus the innocent purchaser is deprived of the value of his labor, while the guilty trespasser is not.

The rule adopted by the court below seems, therefore, to be objectionable, because it operates unequally and unjustly. It not only divests the true owner of his title, without his consent; but it obliterates the distinction maintained by the civil law, and as we think by the common law, between the guilty and the innocent; and abolishes a salutary check against violence and fraud upon the rights of property.

We think, moreover, that the law on this subject has been settled by judicial decisions in this country. In Betts v. Lee, (5 John. 349,) it was decided that as against a trespasser the original owner of the property may seize it in its new shape, whatever alteration of form it may have undergone, if he can prove the identity of the original materials. That was a case in which the defendant had cut down the plaintiff’s trees, and made them into shingles. The property could neither be identified by inspection, nor restored to its original form; but the plaintiff recovered the value of the shingles. So in Curtis v. Groat, (6 John. 169,) a trespasser cut wood on another’s land and converted it into charcoal. It was held that the charcoal still belonged to the owner of the wood. Here was a change of the wood into an article of different kind and species. No part of the substance of the wood remained in its original state; its identity could not be ascertained by the senses, non could it be restored to what it originally was. That case distinctly recognizes the principle that a wilful trespasser can not acquire a title to property merely by changing it from one species to another. And the late Chancellor Kent, in his Commentaries, (Vol. 2, p. 363,) declares that the English law will not allow one man to gain a title to the property of another upon the principle of accession, if he took the other’s property wilfully as a trespasser : and that it was settled as early as the time of the yearbooks, that whatever alteration of form any property had undergone, the owner might seize it in its new shape, if he could prove the identity of the original materials.

The same rule has been adopted in Pennsylvania. (Snyder v. Vaux, 2 Rawle, 427.) And in Maine and Massachusetts it has been applied to a wilful intermixture of goods. (Ryder v. Hathaway, 21 Pick. 304,5 ; Wingate v. Smith, 7 Shep. 287; Willard v. Rice, 11 Metc. 493.)

We are therefore of opinion that if the plaintiffs below in converting the corn into whisky knew that it belonged to Wood, and that they were thus using it in violation of his right, they acquired no title to the manufactured article, which although changed from the original material into another of different nature, yet being the actual product of the corn, still belonged to Wood. The evidence offered by the defendants and rejected by the circuit judge ought to have been admitted.

The right of Wood’s creditors to seize the whisky by their execution is a necessary consequence of Wood’s ownership. Their right is paramount to his, and of course to his election to sue in trover or trespass for the corn.

The judgment of the supreme court should be reversed and a new trial ordered.

Gardiner, Jewett, Hurlbut and Pratt, Js. concurred.

Bronson, Ch. J.

Two very able arguments here, against the opinion which I delivered when the case was before the supreme court, (4 Denio, 332,) have only served to confirm me in the conclusion at which I then arrived. I shall add but little now to what I said on the former occasion.

The owner may, as a general rule, follow and retake the property of which he has been wrongfully deprived so long as the same thing remains, though it may have been changed in form and value by the labor and skill of the wrongdoer. But when, as in this case, the identity of the thing has been destroyed by a chemical process, so that the senses can no longer take cognizance of it—when it has not only changed its form and appearance, but has so combined with other elements that, it has ceased to be the same thing, and become something else, the owner can, I think, follow it no longer : his remedy is an action for damages. Such I take to be the rule of the common law; and that is our law.

The rule for which the defendants contend, that in the case of a wilful trespass, the owner may follow and retake his property after it has been changed into a thing of a different species —that he may trace com into whisky, and take the new product—is open to several objections. First: it would be nearly or quite impossible to administer such a rule in trials by jury. Second: the rule would often work injustice, by going beyond the proper measure of either redress or punishment; while an action for damages would render exact justice to both parties. It is very true that a wilful trespasser should be punished : but that proves nothing. All agree that he should be made to suffer ; but the mode and measure of punishment are questions which still remain. If one has knowingly taken six pence worth of his neighbor’s goods as a trespasser, he should neither be imprisoned for life, nor should he forfeit a thousand dollars. We should not lose sight of the fact, that the rule now to'be established is one for future, as well as present use; and it may work much greater injustice in other cases than it can in this. Third : there is no authority at the common law for following and retaking the new product in a case like this. I make the remark with the more confidence, because the very diligent counsel for the defendants, after having had several years, pend-" ing this controversy, for research, has only been able to produce some dicta of a single jurist, without so much as one common law adjudication in support of the rule for which he contends. He is driven to the civil law; and then the' argument is, that because we, in common with the civilians, allow the owner to retake his property in certain cases, we must be deemed to have . adopted the rule of the civil law on this subject in its whole extent. But that is a non sequitur. It often happens that our laws and those of the Romans—and, indeed, of all civilized nations—are found to agree in some particulars, while they are widely different in others; and this is true of laws relating to a single subject. There is no force, therefore, in the argument, that because our law touching this matter is to some extent like the civil law, it may be presumed that the two sj'stems are alike in every particular. And clearly, the burden of showing that the Roman law is our law, lies on those who affirm that fact. There is not only the absence of any common law adjudication in favor of the rule for which the defendants contend, but in one of the earliest cases on the subject to be found in our books, (Year Book, 5 H. 7,fo. 15,4 Denio, 335, note,) the court plainly recognized the distinction which has been mentioned, and admitted that the owner could not retake the property after its identity had been destroyed; and grain taken and malt made of it” was given as an example.

There are many cases where the title to a personal chattel may be turned into a mere right of action, without the consent of the owner, although the thing was taken by a wilful trespasser, or even by a thief. If a man steal a piece of timber, and place it as a beam or rafter in his house ; or a nail, and drive it into his ship; or paint, and put. it upon his carriage, the owner can not retake his goods, but is put to his action for damages; and this is so in the civil, as well as at the common law. If a thief take water from another’s cistern, and use it in making beer; or salt, and use it in pickling pork; or fuel, and use it in smoking hams, I suppose no one will say, that the owner of the water, the salt or the fuel may seize the beer, the pork or the hams. And there is no better reason for giving him the new product, where sand is made into glass, malt into beer, coal into gas, or grain into whisky. In the case now before us, the civilians would not go so far as to say, that the owner of the grain might take the swine which were fattened on the refuse of the grain after it had gone through the process of distillation. And yet that would hardly be more unjust or absurd than it would be to give him the whisky. There must be a limit somewhere ; and I know of none which is more safe, practical and just than that which allows the owner to follow a chattel until it has either been changed into a different species, or been adjoined to • something else, which is the principal thing ;■ and stops there. Thus far our" courts have gone, and there they have stopped. We have neither precedent nor reason in favor of taking another step; and I can not take it.

Judge Harris agrees with me in the opinion that the judgment of the supreme court is right, and should be affirmed.

Taylor, J. did not hear the argument, and gave no opinion.

Judgment reversed.


source: Caselaw Access Project

author: Harris, J.

license: Public Domain

text:
    Powell and others vs. Tuttle and others.
    A sale of mortgaged lands made by one of the commissioners under the “ act authorizing the loan of certain moneys of the United States deposited with the state of New-York,” (Slat. 1837, p. 121,) is irregular and void. Both commissioners must be present and concur in the sale.
    Nor does a conveyance to the purchaser in which both commissioners subsequently unite render the sale valid.
    The case of King v. Stone, (6 John. Ch. R. 323,) commented upon and overruled.
    A special Statute authority, under which a party may be divested of his title, must be strictly followed.
    An authority to do acts merely ministerial or mechanical may, it seems, be delegated ; but not so, where the act involves the exercise of judgment or discretion.
    On the 29th of June, 1837, Wilmot Everitt, having borrowed of the commissioners for loaning certain moneys of the United States deposited with the state of New-York in the county of Chemung, the sum of $402, executed to the commissioners a mortgage upon a farm in the town of Chemung, to secure the payment of the amount with interest, according to the provisions of the act of April 4, 1837. On the 22d of May, 1840, Everitt executed to Samuel Williams, president of the Powell Bank another mortgage upon the same premises, together with other lands, to secure the payment of $10,000. The plaintiffs, Tho’s Powell and others, were at the commencement of this suit the assignees and owners of the latter mortgage. Default having been made in the payment of the interest due upon the mortgage to the commissioners on the first Tuesday of October, 1842, the commissioners, on the 27th day of the same month advertised the premises to be sold at the court house in Elmira, on the first Tuesday of February then next, at 10 o’clock in the forenoon. The sale took place at the time and place appointed. No persons were present except George Kingsbury, one of the conmissioners, and the defendant Stephen Tuttle. Kingsbury offered the premises for sale pursuant to notice, and Tuttle became the purchaser for $468,50, the amount due upon the mortgage for principal and interest. At the time of the sale Everitt resided upon the premises, 12 or 13 miles from Elmira, He had prepared himself to pay the amount of the interest upon the mortgage and the cost of the proceedings, and left home for that purpose, in time to reach the place of sale before the hour at which it was to take place, but for the inclemency of the weather and the slow and difficult travelling, occasioned by the drifting of the snow. As it was, he reached the place shortly after the sale, and before any money had been paid by the purchaser, or the deed had been executed. He then offered to pay the interest and costs, but did not offer to pay the principal. Several other parcels of land were advertised by the commissioners to be sold at the same time, but the sale of these parcels, with one exception, was postponed until the afternoon of the same day. On a subsequent day, both commissioners executed to Tuttle a deed of the premises, as the purchaser thereof at the sale, and at the same time Tuttle delivered to the commissioners his mortgage upon the same premises, for the amount of the principal due upon the Everitt mortgage, and paid the interest and costs. Other facts appeared in the case, upon which various questions were raised and discussed upon the argument, but this statement will be sufficient to present the question decided by this court.
    The bill was filed by the assignees of the mortgage to the Powell Bank, and Everitt, to be relieved from the conveyance executed by the commissioners to Tuttle. The cause was heard on pleadings and proofs before the vice chancellor of the sixth circuit, who made a decree, on the 6th of January, 1845, declaring the sale by the commissioners void, and directing the deed executed by the commissioners to Tuttle to be delivered up to be cancelled, and that Tuttle be perpetually enjoined and restrained from setting up, or in any manner insisting upon, his title, or any claim or interest in the premises, through or on account of his purchase. The decree also directed that the plaintiffs should within sixty days pay to Tuttle the amount he had paid to the commissioners, with interest, and that they should also pay to the commissioners the amount due upon the mortgage executed to them by Tuttle, and that upon such payments being made the mortgage executed by Tuttle should be can-celled. Upon the failure of the plaintiffs to comply with these provisions of the decree, the bill was to be dismissed with costs to the defendant Tuttle. This decree was affirmed upon appeal at a general term of the supreme court, held in the fifth district on the 29th of January, 1849.. From this decree of affirmance the defendants appealed to this court.

      B. D. Noxon, for appellants,
    I. A sale by one of the commissioners of loans, for loaning the United States deposit fund, may be made without the presence of the other. The act of 4th April, 1837, does not expressly or by implication require the presence of both. The sale is entirely ministerial; there is no discretion; both assented to the sale by giving the deed; the notice of sale was by both. One may delegate his power to the other, so far as the sale is concerned. (3 Hill, 603, 4; King v. Stone, 6 John. Ch. 323; Laws of N. York, 1808, vol. 5, p. 595; Downing v. Ruger, 21 Wend. 178; 3 East, 192.)
    II. Mere inadequacy of consideration is not a sufficient ground for setting aside a sale, ( White v. Damon, 7 Ves. jun. 30; 8 id. 137, note; Coles v. Frecothick, 9 Ves. 246; Burrows v. Lack, 10 id. 470; Livingston v. Byrne, in error, 11 John. 555 ; Williamson v. Dale, 3 John. Ch. 290; Amer. Ins. Co. v. Oakley, 9 Paige, 259; Seymour v. De Laney, 6 John. Ch. 222; S. C. in error, 3 Cow. 445; Rogers v. Murray, 3 Paige, 393.)
    III. There is no allegation of fraud in the complainants’ bill, and without such allegation they cannot avail themselves of an inference of fraud. (James v. McKernon, 6 John. 543; Woodcock v. Bennett, 1 Cowen, 734; Lyon v. Tallmadge, 14 John. 516;. Story’s Eq. Pl. 24, § 28; 6 Sim. 565; Gordon v. Gordon, 3 Swanst. 472; Forsythe v. Clark, 3 Wend. 653; Stuart v. F. & Mech. Bank, 19 John. 505.)
    IT. There was no accident in this case by which the court would be authorized or justified to set aside the commissioners’ sale. (Cooper’s Pl. 130; 6 Vesey, 73 to 88; 2 Ch. Cas. 217; 1 Ves. 524, 540; 3 Anst. 687; Str. 763; 2 Ld. Raym. 1477; 1 Fonbl. Eq. (Dublin ed. 1793) b. 1, ch. 1, § 3, p. 17; 1 Ch. Ca. 228; 1 Bl. Com. Intr. § 3 ; 20 Wend. 198; 1 Story’s Eq. §96;
      id. § 513; Paradym v. June, Aleyn, 27; Roberts v. Beatty, 2 Penn. Rep. 67, 8, 9.)

      J. A. Collier, for respondents.
    I. If the mortgage sale under which Tuttle purchased had been in all respects regular, yet, as Everitt left home in time, but-for accidental circumstances, to have reached the place of sale, prepared, and for the purpose of paying the interest and costs, and was detained only by the unusual and unexpected state of the roads, and the severity of the storm ; or if, arriving in season, the commissioner and bidder could not be found at the court house until after the sale took place; considering the value of the property, and the relation in which the parties stood, a court of equity, whose peculiar province it is to relieve against accidents and mistakes, should grant relief in a case like this, and open or vacate the sale. (18 Wend. 611; 13 id. 224; Tripp v. Cook, 26 id. 143, 153; 3 John. Ch. 332; 4 id. 118.)
    II. One commissioner had no power to act, but the presence and concurrence of both were required in all their official acts. The sale was irregular and void on that ground. (Laws of 1837, p. 121, § 2 ; 124, § 13; p. 127, § 23; 129, § 32; 133, §§ 45, 46; p. 134, § 53 ; 1 Bos. & Pull. 229, 236; 6 John. 39, 41; 2 R. S. 555, § 27 ; 21 Wend. 178, 185, 182; 3 Edw. Ch. R. 399; Laws of 1832, p. 180; 2 R. S. 3d ed. § 375; Doughty v. Hope, 1 Comst. 79; 6 John. Ch. 323.)
   Harris, J.

The first, and as it appears to me the vital question in this case is, whether the power to sell conferred by statute upon the commissioners, has been well executed. But one of the commissioners was present at the sale. The plaintiffs in sist that the power of sale is vested in the commissioners jointly, and that in the absence of one, no valid sale could be made by the other. On the other hand, the defendants contend that, the sale being a ministerial act, one commissioner might delegate to the other the power to sell, and, in this instance the execution of the deed to the purchaser is evidence of such delegation, and a ratification of the sale by the absent commissioner. Whether the commissioner acted discreetly in making the sale, or whether he should have kept the sale open, as he did in other instances, until afternoon, is not now to be considered. There is no allegation of fraud or collusion in the bill. The sole question is, whether the commissioner had authority to make the sale when, and as he did.

In the terms of the statute itself, there is certainly nothing which requires, or indeed seems to favor the construction for which the defendants contend, and which is necessary in order to sustain this sale. The 30th section of the act (Sess. Laws of 1837, p. 129) declares, that upon the neglect of the borrower to pay the yearly interest, &,c. the commissioners shall be seised of an absolute and indefeasible estate in fee in the lands, but the mortgagor, his or her heirs or assigns, shall be entitled to retain possession of the premises until the first Tuesday of February thereafter, and to redeem the same as provided in the act. The 31st section requires the commissioners to advertise such premises to be sold on the first Tuesday of February then next, at the court house. The 32d section directs the commissioners to expose the lands described in the mortgage foreclosed, to sale at public vendue, on the first Tuesday of February, and upon such sale to convey the lands to the highest bidder. By the 34th section the commissioners are authorized at any time, before the premises are actually struck off, to postpone the sale at their discretion, for the purpose of inquiring into the value of the premises. In all these provisions, relating to the sale, as well as in every other provision of the act, involving the powers and duties of the commissioners, the legislature seems to have contemplated the presence and participation of both commissioners in every official act. I think it very clear, that it was intended to secure, in every essential act to be performed by the commissioners, their joint deliberation and united judgment. When a duty merely mechanical is to be performed, as in the case of fixing up the advertisement of sale, the commissioners are authorized to cause such duty to be performed. But when any act is to be done, which involves, in any degree, the exercise of discretion, it seems to have been the policy and purpose of the legislature, to secure the benefit of the joint exercise of such discretion by the commissioners themselves. It is a familiar rule of law, that a special authority must be strictly pursued. When such authority is prescribed by statute, and when, in its exercise, it operates to divest the citizen of his property, courts can not be too sedulous in confining it within the boundaries which the legislature have thought fit to prescribe. At this day, and in this country, especially, the protection of private rights demands this safeguard ; and he who will review the adjudications of our courts, involving this principle, will be interested to observe with what uniformity and increasing jealousy the exercise of such a power has been restricted to its own specified limits. (Sherwood v. Reade, 7 Hill 431; Striker v. Kelly, id. 9 ; Same case in error, 2 Denio, 323 ; Sharp v. Spier, 4 Hill, 76; Downing v. Ruger, 21 Wend. 178.) In the latter-case, Cowen J. says, The rule seems to be well established, that in the exercise of a public as well as private authority, whether it be ministerial or judicial, all the persons to whom it is committed must confer and act together, unless there be a provision that a less number may proceed.”

If it were important to vindicate the wisdom of the legislature in omitting to authorize the commissioners to delegate their power to sell to a third person or even to one of themselves, such vindication might be found in this very case. Without referring in detail to the circumstances, I feel warranted in saying that they were such as required the commissioner in the exercise of a fair and reasonable discretion, at least to hold the sale open for a short season. A farm worth $5000 was about to be sold, irredeemably, for less than $500. The commissioner had a few days before been apprised by the owner, and by his son-in-law also, that it was their intention to pay the amount requisite to prevent the sale, before it should take place. All the witnesses who speak upon the subject agree that the weather was extremely inclement. The commissioner had every reason to believe that Everitt, like others interested in property advertised to be sold on the same day, had been prevented by the severity of the storm, and the bad condition of the roads, from reaching the place of sale at the hour appointed. Under such circumstances, I can scarcely conceive that another commissioner would have concurred in the propriety of hurrying off the sale at a sacrifice so enormous. The plaintiffs have not put their claim to relief upon the ground of an abuse of the discretion vested in the commissioner, but I do not deem it inappropriate to say, that whatever may have been his motive, the manner in which the commissioner conducted the sale does not commend the transaction to approbation. Greater regard for the interests of those whom he was about to divest of their property would have been entirely compatible with a faithful discharge of his public trust. He owed a duty as well to the mortgagor and his subsequent mortgagees, as to the state. If the property was to be sold, they were entitled to the surplus moneys, and had a right to a reasonable exertion on the part of the commissioners to prevent unnecessary sacrifice. I have thus referred to the circumstances attending the sale, not as a ground upon which the question under consideration can be decided, but to show that the sale authorized by the statute may, and sometimes does, involve an important exercise of discretion, and that it was not an idle thing for the legislature to require both commissioners to be present for that purpose. It was said by an eminent jurist, more than thirty years ago, that sales of real property by public officers of one description or another, had become so frequent, and had excited such active cupidity, and such a. spirit of speculation, that there was very great danger of injustice, unless the checks and guards provided by law were strictly supported.” (Dunning v. Smith, 3 John. Ch. 344.) Subsequent experience authorizes us to repeat the remark, as emphatically applicable to the present condition of things in our state and country. ,

The legislature itself has repeatedly given a practical construction to the provision of the statute under consideration. The 32d section is, in substance, and very nearly in terms, the same as the 21st section of the first loan office law, entitled “ an act for emitting the sum of two hundred thousand pounds in bills of credit, for the purposes therein mentioned,” passed April 18, 1786. By the latter section, the loan officers were required to expose the lands described in the mortgages foreclosed to sale at public vendue on the third Tuesday of September, yearly. By the 20th section of the same act, the sale was required to be made at the court house of the county where the lands were situated. After the passage of the act of 1786, the counties of Albany and Montgomery were each divided, and, as the sales under loan office mortgages must be made on a particular day, and must also be made at the court house of the county where the lands were situated, it might become impracticable for the loan officers to discharge their duty by selling on the same day at the court house in different counties. To obviate this difficulty, the legislature in 1791 passed an act authorizing the loan-officers of Albany and Montgomery, if it should so happen that they could not attend at the different sales on the day specified, to adjourn any sale, by advertisement, to a further day, not exceeding fourteen days. (1 Greenl. L. 247 ; 2 Id. 367.) It is obvious that this provision, in respect to the two counties which had been divided, would have been unnecessary, if it had been understood that the requirement of the statute would have been satisfied by the presence of one of the loan officers at the sale. But as it might be impossible for both loan officers to attend sales to be made on the same day in different counties, the legislature deemed the law necessary.

The 16th section of the loan act of 1792, (3 72. S. 209,) and the 18th section of the loan act of 1808, (3 R. S. 224,) are each the same in terms, as the 32d section of the act of 1837. In 1832 a law was passed relative to the loans under the acts of 1786, 1792 and 1808, the 9th section of which is as follows: “ Whenever any county in which loans may have been made, pursuant to either of these acts authorizing loans of moneys to the citizens of this state, shall have been divided since the passing of the act under which such loans were made, and whenever in such case it shall be necessary for the commissioners of loans, in any one year, for default in the payment of principal or interest of any such loans, to sell lands in two counties, it shall be lawful for one of the commissioners of loans under whose care any mortgage given for such loan may be, to attend at, and'conduct the sale of the mortgaged premises ; and such sale so conducted shall be valid and effectual as if made by both of said commissioners.” (Sess. L. of 1832, p. 180.) Here we have a clear legislative declaration of the necessity of the at tendance of both commissioners to make a valid sale under either of the existing loan acts of this state, and an expressed unwillingness to dispense with such attendance, except in a specified case, where by the terms of the law sales were required to be made, under the authority of the same commissioners, in different counties, on the same day.

The only adjudged case which seems to favor the construction for which the defendants contend is that of King v. Stow, (6 John. Ch. 323.) That was a case of sale under the loan act of 1808. One ground upon which it was insisted that the sale was void was, that one of the commissioners was not present when the sale was made. The learned chancellor admits the better construction of the act to be, that it is the duty of both commissioners to be present at the sale, in order to superintend it, and to see that it is conducted with discretion and fairness.” But he adds, I do not see sufficient reason to conclude that the validity of the sale, if otherwise fair, can be affected by the absence of one of the commissioners at the time of the outcry by the auctioneer and the fall of the hammer.” Again he says, “ it is to be presumed that the sale was fairly made and conducted, and that the presence of the commissioner who was absent would not, in fact, have been of any utility, or have affected the course of the proceeding.” The chancellor himself seems here, for the moment, to have lost sight of the important principle which he had so eloquently announced in Dunning v. Smith, that the checks and guards provided by law against abuse in the sales of real property by public officers, must be strictly supported to prevent the injustice which might otherwise result from the active cupidity and the spirit of speculation excited by the frequent occurrence of such sales, and to have been led away by the inquiry whether, in that particular instance, there had been any unfairness. He declares that it was the duty of both commissioners to be present, and yet, because it is to be presumed that the sale was fairly made, and that the presence of the absent commissioner would not in fact have been of any utility, the sale is to be upheld and declared valid. Such reasoning, (I say it with the profoundest reverence for the name and authority of the great jurist whose decision I thus venture to question,) seems to me entirely inconsistent with the cardinal principle so well stated by Justice Bronson, in Sharp v. Johnson, (4 Hill. 99,) that “ when lands are to be taken under a statute authority, in derogation of the common law, every requisite of the statute, having the semblance of benefit to the owner, must be strictly complied with.” If the course of proceeding prescribed by law has not been pursued, of what avail is it that “ the sale was fairly made and conducted ?” If the legislature have thought fit to make the presence of both commissioners a condition precedent to their authority to sell, how can the fact that there was nothing “ otherwise” unfair, give validity to a sale made by one commissioner in the absence of the other ? It might, perhaps with equal truth, be presumed, that if neither commissioner had attended, and in their stead they had employed a constable or auctioneer to make the sale, it would have been “ fairly made and conducted.” In the language of Chancellor Kent, it might be said, that the presence of the commissioners would not in fact have been of any utility or have affected the course of the. proceeding.” Yet who will pretend .to say that, however fair, such a sale would have the effect to vest in the purchaser a valid title ? It is not for the public agent, nor yet for the courts, to say that any course of proceeding other than that prescribed by law, will do just as well. Those who are invested with the power of transferring one man’s property to another, must pursue their authority with precision, or what they do will be invalid. For myself, I can perceive no difference, in legal effect, between a sale made by one commissioner without the presence or authority of the other, and a sale made by a stranger. Indeed it seems to me that if the sale made by the stranger were made upon the appointment of both commissioners, its validity might be more plausibly maintained, than that made by a single commissioner, though it be subsequently ratified by his associate.

The case of The People v. The Commissioners of the Canal Fund, (3 Hill, 599,) was cited upon the argument, as furnishing an adjudication analogous in principle, to that for which the defendants contend. In that case an appeal had been taken by an acting canal commissioner, having charge of the section of the canal upon which the claim for damages arose, from the decision of the canal appraisers. It was contended, by the relators in that case, that a single commissioner could not make á valid appeal. The statute, in terms, gives the appeal to “ the canal commissioners,” in the plural. Notwithstanding this, it was held that the legislature intended to give the right of appeal to each acting commissioner, in cases arising in his particular district. Besides, it was clearly competent for the canal commissioners to employ one of their board, or an attorney, or any other person, to institute and prosecute the appeal. It was in the nature of a suit, and it did not lie with those whose interests were adverse, to question the authority of those who assumed. to act for the canal commissioners. The analogy between this case and that under consideration, if any exists, is certainly not very obvious.

Downing v. Ruger, too, was a case where one overseer of the poor, in the name and on behalf of both, made application, according to law, for process. It was held that the duty being strictly ministerial in its character, one might act alone as the agent or deputy of both, with the other’s assent. Can there be a doubt,” asks Justice Cowen, that overseers of the poor, in prosecuting under the excise law, or otherwise appearing as parties, may make an attorney ?” In that case, as well as in that of The People v. The Commissioners of the Canal Fund, the proceeding in question did not affect the rights of other persons, farther than to institute legal proceedings which might result in an adjudication affecting such rights.

The only other cases cited by the defendants’ counsel in support of the validity of a sale by one commissioner, without the presence of the other, are The King v. Forrest, (3 D. & E. 38,) and The King v. The Inhabitants of Hamstall Ridware, (id, 380.) In the former of these cases, a warrant, appointing overseers of the poor of the parish, had been signed by four justices. It appeared that it had been signed by one of the justices, and had then been sent by him to the other three, who separately signed it, at their respective houses, no two of them having signed it in the'' presence of each other. It was held that to make the appointment good, the justices should have acted together. Lord Kenyon said, This is not merely a ministerial act; if it were, like the signing of a rate, that might perhaps vary the question. But it is a judicial act, wherein the justices are to exercise a discretion.” In the other case cited, an indenture of a parish apprentice had been assented to by two justices, but not at the same time, or in the presence of each other. Lord Kenyon said, “ The rule has been long settled to be, that the concurrence of justices together is not necessary where the act to be done is merely ministerial, but they must confer together and form a joint opinion, where the act is of a, judicial nature.”

The only bearing which these decisions can have upon the case in hand, is. that they recognize the distinction between ministerial and judicial acts. It might well be that in a case where the duty to be performed is purely mechanical, requiring no exercise of discretion, or judgment, such duty, when assigned to two pe'rsons, might be performed by them separately, or by one of them, with the assent of the other. But, even then, where, as in the case before us, the legislature has imposed that duty upon two, I should have some difficulty "in coming to the conclusion that it might, under any circumstances, be performed by one. But the conclusive answer to the argument is, that. the duty to be performed at the sale is not exclusively ministerial in its character. So far as it is, it may undoubtedly be delegated. The commissioners may, for example, employ an auctioneer to proclaim the sale, and to receive bids, but they must themselves determine when to commence the sale, and how long it shall be kept open, and whether, under the 34th section of the act, the sale shall be, postponed. These, and other similar questions, which may arise at the time of the sale, are so far judicial in their character, as to require the presence of both commissioners for their determination.

I am satisfied that it is the true construction of the statute, and was the intention of the legislature, that both commissioners should be present at the sale, ready to exercise their united judgment, as occasion may arise. It is a substantial requirement, and has not been complied with. My opinion, therefore, is that the decree of the supreme court should be affirmed.

Decree affirmed


author: Pratt, J.

text:
    McGregor and others vs. Comstock.
    By the common law rule of descents the alienage of a common grandfather does not impede descent between cousins, the children of brothers who were citizens and capable of transmitting by descent.
    The rule that the descent between brothers is immediate, and not impeded by the alienage of their father, holds also between one of the brothers and the representative of the other, and also between the representatives of both of them.
    Appeal from the supreme court, where the action was ejectment for land situated in the city, of New-York. The plaintiffs claimed to recover as heirs of their cousin John McGregor jun. who died prior to 1830, seised of the premises, and the question was whether the descent to them was impeded by the alienage of the common grandfather through whom the pedigree was traced. The plaintiffs were nonsuited on the trial, and after judgment they appealed to this court.

      J. Ellsworth, for appellants.

      J. A. Collier, for respondent.
   Pratt, J.

John McGregor, senior, a native of Scotland, came to the city of New-York some time previous to the year 1792, and was naturalized there in that year. In 1795, he purchased the premises in question in this suit, and died in 1802, leaving a son, his sole heir at law, born in 1800. John jun. the son, was sent to England in 1807. He left there for the East Indies in 1818; since which time he has not been heard of. He was never married, and it is claimed that he should be deemed to have died in 1825..

William McGregor, a brother of John, senior, came from Scotland, and resided in Saratoga county, and was naturalized there in 1813. He died in 1833, leaving the plaintiffs his heirs at law. The plaintiffs claim to recover as heirs at law of John McGregor, jun. They were nonsuited at the trial on the gound that their grandfather, the father of John McGregor, sen. and William died an alien, and as they were compelled to trace their pedigree and relationship to John McGregor, sen. through the grandfather, his alienism impeded the descent to them.

This was the only question discussed upon the argument, and I shall in the examination of this case confine myself to this question.

It is somewhat difficult to ascertain from the testimony in this case, whether John McGregor, jun. had during his life such seisin in fact of the premises in question as would make it necessary to deduce title from him as the person last seised, as he died before our revised statutes and whilst the common law rule was still in force. But if the view which I take of the law of this case be correct, that point is immaterial, and I shall therefore assume that seisin in him was sufficiently proved.

The question then is simply this. Under the common law rule of descents, did alienism in the common grandfather impede the descent between cousins whose immediate ancestors were brothers, and capable of transmitting by descent?

It is admitted that the plaintiffs represent their ancestor William McGregor, and therefore stand in the same position as he would if he was still alive and the suit had been brought by him. It is also conceded that William might have inherited directly from his brother John McGregor, senior, notwithstanding the alienism of their common father. But it is claimed that he could not inherit from his nephew, the son of John; that although the descent between brothers is immediate, and therefore the want of inheritable blood in the common father does not impede, yet the descent between the descendants of brothers is subject to a different rule and is impeded by the want of inheritable blood in such common ancestor. It was upon this distinction that the case was decided in the court below, but after a careful examination of the authorities, I am Unable to find that any such distinction does, in fact, exist. There is no authority for applying any different rule to a case of descent between brothers than to a case of descent between their representatives. In both cases, the pedigree or relationship is traced through the common ancestor, but the descent or inheritance is only traced fhrough the brothers directly from one to the other.

It is laid down by Blatikstone as the great and fundamental rule in the law of descents, to which there is tio exception save the case of half bloods, that he who would have been heir to the father of the deceased, shall also be heir to the son.” (2 Black. Com. 223.) ' The inquiry in this case therefore should be, who would have been heir to John McGregor, senior? If the descent between brothers is immediate, and not affected by alienism of the common ancestor, the answer is obvious. It would have been William, the father of the plaintiffs. He would have been the heir, not as the representative of his father, but as the immediate representative of his brother. He was, therefore, by a necessary deduction, the heir to John, junior, the intestate. This conclusion settles the question, unless there can be found in the authorities some arbitrary rule which would make this case an exception to the general rule above laid down from Blackstone. I have therefore examined the authorities, both English and American, at some length, and it will be seen that they recognize no such exception, but directly support the rule.

It is true that Lord Coke, in his commentaries upon Littleton, lays down a different doctrine, and holds that alienism in the common father impedes the descent between brothers. It will be seen, however, that he recognizes no such distinction as is claimed in this case, to exist. He says: “ If an alien arrives in England and has two sons born there, they are of course natural born subjects; and if one purchase land and die without issue, his brother can not inherit as his heir, because he must deduce his title by descent through his father, who had no inheritable blood.” It was upon this question that the great judicial conflict took place in the celebrated case of Collingwood v. Pace, in which the question was argued before all the judges of England, and decided by seven judges to three, against the doctrine of Lord Coke. All the judges gave opinions seriatim, which are reported in 1 Keble, commencing at page 65. (See also 1 Vent. 413; O. Bridgman’s Rep. 410.) In that case Robert Ramsay, an alien' born in Scotland before the union, had four children also born there, two of whom, John and George, came -into England and were naturalized by act of parliament. George died leaving a son born in England, who was the lessor of the plaintiff in that suit. John, senior, died seised of lands, without issue. The action was brought in behalf of the son of George, as heir to his uncle John. The court, as before observed, held that the descent betwéen brothers was immediate, and therefore the alienism of the common ancestor was no impediment, and the nephew was entitled to recover. The prevailing opinions of all the judges throw much light upon the subject; but that of Lord Hale, as reported in Ventris, is the most clear and conclusive. He insisted that the descent between brothers was an immediate descent; that the father, although a medium differens sanguinis, was not a medium differens hcereditatis, and that alienism in the latter line only impeded the descent. That in tracing the latter line, or line of inheritance between brothers or their descendants, it was not necessaiy to name the common ancestor; and that alienism in any ancestor whom it was not necessaiy to name in tracing such inheritance or descent, does not impede. He examined all the cases bearing upon the question, and pointed out, by a variety of illustrations, the distinctions between them; to some of which cases I will briefly allude.

The first was Hobby’s case, reported in Cro. Jac. 539, Palmer 19. William Hobby had issue, Philip and Mary, and was at-tainted for treason, and died. Philip purchased lands and died without issue. It was held that. Mary should inherit notwithstanding the attainder of the father; as the descent between them was immediate, and not through the father. It may be remarked here that attainder had substantially the same effect upon descent as alienism. Indeed, under some circumstances, attainder will impede the descent where alienism would not impede. But I know of no case in which the opposite is true. Adjudications, therefore, showing the effect of attainder upon descents, are good authority upon the effect of alienism.

In Grey’s case (Dyer, 274) a younger brother had issue, was attainted for treason, and died. His elder brother, having a petition of right, died without issue. It was held that the issue of the younger brother could not inherit. They represented' their father, and must trace the descent through him ; and as he could not inherit, his representatives could not.

In Courtney's case, cited by Ld. Hale, one Henry Courtney had issue, Edward, and was afterwards attainted and died. Edward purchased lands and died without issue. It was held that the sisters and sisters’ children of Henry could not inherit. That they must claim as representing Henry, and deduce their title through him, and his want of capacity would therefore impede—that the representative could be in no better position than the person whom he represents.

Lord Hale, in commenting upon this case, conceded its correctness, and in pointing out the difference between it and the principal case under consideration, he says—“ Suppose the grandfather of Edward had been attainted, and not Henry the father. This could not have impeded the descent from Edward to his aunts, because the attainder had been paramount .that consanguinity which was between Henry and his sisters as brothers and sisters.” This supposed case, substituting alien-ism for attainder, it will be seen, is precisely the case at bar ; and unless Lord Hale, was mistaken in his views, settles this case.

These are the only English cases which I have been able to find. Soon after the decision in the case of Collingwood v. Pace, the statute of 11 William 3d was passed, which swept away these artificial distinctions, and enabled natural born subjects to inherit the lands of their ancestors notwithstanding the alienism of some person through whom the descent must be traced.

On examining the elementary writers upon the subject it will be found that they have followed the decision of the court in the case of Collingwood v. Pace, and assumed it to be good law. They clearly establish these two positions, which are merely corrollaries to be deduced from the reasoning of the judges in that case. First. That it is not necessary to name the common ancestor in deducing title from a brother or other collateral relative : and Secondly. That alienism or attainder in any person whom it is not necessary to name, in deducing such title, will not impede. In support of the first position, I cite from Blackstone. “ But though the ancestor be the root of the inheritance, yet with us it is not necessary to name him in making out the pedigree or descent, for the descent between brothers is held to be an immediate descent, and therefore may be made by one brother or his representative to or through another brother without mentioning the common father. If Geoffrey Stiles hath two sons, John and Francis, Francis may claim as heir to John without naming their father Geoffrey ; and so the son of Francis may claim as cousin and heir to Matthew, the son of John, without naming the grandfather, viz. as son of Francis who was the brother of John the father of Matthew.” (2 Blackstone, 226.) This is precisely as the plaintiffs claim in the present case. In Tomlin’s Law Dictionary, 547, it is said, “ That the descent between brothers is an immediate descent, and therefore title may be made by one brother or his representatives to or through another brother without mentioning the common father.” So in 12 Mod. R. 619, it was laid down as a rule of pleading, “ that if the son will make himself heir to the uncle he must show coment and make the father a medium, that is, that the inheritance descends to him as consanguíneo et haredi, viz. son and heir of such an one who is brother to the uncle.”

In support of the latter position Baron Hawkins says, The attainder of a person, who need not he mentioned in the conveyance of descent, does no harm, let the ancestor be never so remote, and a fortiori where one may claim as immediate heir to another, without deriving the descent through any other, he shall not be barred by the attainder, and he cites the case of brothers inheriting from each other.” (Hawkins’ P. C. b. 2, ch. 49, § 49.) So in Cruise’s Dig. vol. 3, p, 370, it is said That one may inherit from his brother notwithstanding the alienism of the father, for although the father is medium differ-ens sanguini, he is not medium differ ens hcereditatis. (See also Com. Dig. tit. Alien, C.; Bac. Ab. Alien, C,; Chitty on Descents, 354.)

It seems, therefore, that by the rules of the common law the alienism of the grandfather of the plaintiffs is no bar to the action in this case, and I am unable to find any reported case in this country, which conflicts in_ the least with the rules of the common law. The first case in our own courts is Jackson v. Green, (7 Wend. 333.) In that case one Felix Cunningham, a naturalized citizen, had purchased land, and died intestate, and without issue. The claimants were children of one James Doran, a cousin of the intestate, their mothers being sisters and aliens. It was held that they could not recover. The claimants were compelled to make title through their grandmother and great-aunt, and were directly within the cases of Gray and of Courtney above referred to.

The next case is Jackson v. Fitzsimmons, (10 Wend. 9.) In that case the son of an alien claimed to inherit the lands of his uncle, his father’s brother. The plaintiff claimed as representative of his father, who was an alien, and he could of course be in no better position than his father would have been in had he been alive and brought the suit. The case of The People v. Irving, (21 Wend. 128,) was a case under our revised statutes, and can not, therefore, affect this case.

In the case of The Lessee of Levy and others v. McCarty,, (6 Pet. 102,) the claimants were grandchildren to one Leipman Cohen, a maternal uncle of the person who died seised of the land in question. The grandfather and his sister, the mother of the intestate, were both aliens. It was therefore precisely Courtney's case, and the court held they could not inherit.

These are all the cases which have come under my notice, and they do not conflict with the English authorities upon the same subject. It follows, therefore, that the decisions of the judge at the circuit, and of the supreme court, were erroneous, and the judgment must be reversed venire de novo.

Judgment reversed.