Seitzinger v. Marsden

— Sterrett, J.:

This suit was Drought hy the plaintiffs below, as trustees for laborers and miners employed in the collieiy of William Burton, to recover the value of certain personal property sold on an execution against him, and purchased by them in trust for themselves and their associates, which property they allege was taken by the defendant below and converted to his own use. It was, of course, incumbent on them to show title to the property in question, that it was subsequently taken and converted by the defendant, and its value at that time. Testimony tending to prove each of these facts was adduced *472and submitted to the jury under instructions, which appear to be free from substantial error. It was clearly shown that they purchased the property at the sheriff’s sale, took possession of it, sold a portion, and retained the residue until it passed into the hands of the plaintiffs in error. At the time of sale, Burton was lessee of the colliery, under the leases given in evidence, and the property in question had been put upon the premises and used by him for the purpose of his business. The testimony also tended to show that the right of the sheriff’s vendees to the custody and control of the property was contested by defendants below, and, for the purpose of avoiding threatened personal violence, they were permitted to take possession of it, with the understanding that such taking'should be considered forcible, and should not prejudice any claim the plaintiffs might have to the value of the property so taken. Whether there was any such understanding or agreement between the parties, by virtue of which the possession was obtained, or riot, was a question of fact for the jury. If they found there was, it was their exclusive province to ascertain the terms and conditions thereof. The learned judge accordingly submitted the question to the jury, and instructed them to inquire and determine whether the defendant converted any of the plaintiffs’ property to his own use, under a promise to pay them for the same, and, if so, what was its value. He also charged that, by virtue of the sheriff’s sale, “the plaintiffs acquired all the right, title, and interest of Burton in and to the property sold” as his; that if under the law, as explained by the Court, and the facts, as found by them, they believed the plaintiffs had established their right to the property; and were further satisfied that defendant (by his agent or employés, acting within the scope of their authority) received any of the property and converted it to his own use, with a promise to pay for the same, or through fraud or unfair dealing, then he would be liable for the value thereof with interest. We think the evidence was not only sufficient to justify the submission of these questions of fact to the jury, but that it would have been error to have withdrawn the case from their consideration by giving binding instructions, as requested in defendant’s 3d, 6th, 7th, and 8th points. The several assignments, based upon these matters respectively, are therefore not sustained. Nor is there any merit in the several assignments relating to the title acquired by plaintiffs, as vendees of the sheriff.

The Court was clearly right in saying that, by virtue of the judicial sale, they “acquired all the right, title, and interest of Burton in and to the property sold.” And, when *473considered in connection with the general charge, the affirmance of plaintiffs’ first point conveyed precisely the same idea. There is nothing in either of the leases that would have prevented Burton from using his property on the demised premises before the sale, nor do we think there is anything to prevent those who succeeded to his title from exercising rights of ownership after they came into possession as vendees of the sheriff. In affirming defendant’s fourth point (in case the jury found the facts to be as therein stated), the learned judge instructed them that if plaintiffs, after obtaining possession as vendees of the sheriff, went to work to dismantle and destroy the colliery, with the purpose of abandoning the same, they did what they had no right to do, and that they acquired thereby no right to the fixtures when severed. But the facts stated in that point are impliedly negatived by the verdict. The greater part of the property was put upon the demised premises under the lease of 1853, which contains no stipulation or covenant by which the lessors during the term could acquire any right to such improvementsas were put upon the premises by the lessee for the purpose of his business, nor did it require the latter to pay royalty on any more coal than was actually prepared for the market. But it is contended that, by virtue of stipulations contained in the lease of 1859, the sheriff’s vendees could acquire no rights whatever without the consent or approbation of the lessors, and, in the absence of such consent, they took nothing by their purchase.

One of the stipulations provides for an appraisement of the engine and machinery at the expiration of the lease, and, in case the lessors refuse to take the property at the valuation, the lessee shall not remove the pumping-engine until the lessors put up one for themselves, within the time fixed. Another clause provides that the lease shall not be transferred or mortgaged by the lessee, nor shall the operation of any legal process effect a transfer of the lease without like consent; and, on any breach of these stipulations, the lessee, or those who come into possession of his interest, shall thereafter, during the remainder of the term, pay fifty cents per ton for every ton of coal taken out. It is scarcely necessary to say that, as against execution creditors of the lessee, the lessors’ option to buy the tenant’s fixtures, at the end of the term, gave them no title to such fixtures until they were appraised and accepted. Nor can it be successfully contended that Burton had no such title to the engine, machinery, etc., "which he had set up on the demised premises, for the purposes of his business, as could be seized and sold by his creditors. Such property is personal and may *474be taken in execution; nor is its character changed by an agreement between the tenant and his landlord that in a certain event the latter shall have the privilege of taking it at a valuation, to be fixed by parties chosen for that purpose, unless that event has actually occurred. But if there was any breach of the stipulations above mentioned, it resulted from the sheriff’s sale. For that, however, the parties themselves have provided a penalty, to which the lessors should be remitted, rather than be allowed to take the property from the sheriff’s vendees without compensation.

The testimony fails to show that Burton had neglected to perform any of the covenants in the lease except in the nonpayment of a small portion of the rent, and that was claimed by the lessors out of the proceeds of the sheriff’s sale. There appears to be nothing in the case that would have justified the Court in holding that Burton’s title to the property was in any manner extinguished, or lost, so that the sheriff’s vendees could acquire nothing by their purchase.

We discover no error in any of the rulings of the Court that calls for a reversal of the judgment.

Judgment affirmed.