Fitler v. Shotwell

7 Watts & Serg. 14

• Court: Supreme Court of Pennsylvania
• Decided: March 15, 1844
• Status: Published

Opinion

The opinion of the Court was delivered by

Rogers, J.

The Act for the recording and acknowledging deeds relates to such instruments of writing as concern lands, tenements and hereditaments, and does not extend to a bill of sale, or other writing of personal property. The bill of sale, therefore, being put upon record without any authority whatever, the admission of the record of it, or of a certified copy, was erroneous. Hellman v. Hellman, (4 Rawle 444). The defendant had a right to insist on the proof of the instrument in the ordinary way, by the subscribing witnesses.

The court also erred in charging the jury that if Joseph L. Shotwell bought the goods at the first sheriff’s sale in 1835, he might loan or lease them to Edmund Shotwell; and if while they were so loaned or leased, they were afterwards levied on and sold by the defendants, the plaintiff is entitled to recover. This, be it remembered, is an action of trespass; and nothing is better settled than that, to entitle a person to maintain that action, or the action of trover, he must have a right of property and a right of possession ; and unless both these rights concur, the action will not lie. When, therefore, the property is under lease, the lessor has a reversionary interest; and not being in possession, or being entitled to the possession, trespass will not lie. Ward v. Macauley, (4 T. R. 489); Gordon v. Harper, (7 T. R. 11); 4 Wash. C. C. 387.

It is idle to assert that there was no evidence of a lease by Joseph L. Shotwell to Edmund Shotwell. There was e\ idence, of which the jury were the judges; and assuming that to be so, the court instructed the jury that the action might be maintained; and in this they were in error.

Judgment reversed, and a venire de novo awarded.