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of the same kind and equal value. Sometimes the goods mixed are of different qualities, producing a mixture differing in value from either of its constituent elements. In Jenkins v. Steanka (13) one Wright had cut lumber from the plaintiff's logs, and from his own, and mixed it. The lumber from the plaintiff's logs was much superior in quality to the other. In an action to recover possession of the lumber or its value, the trial court instructed the jury that "if they found for the plaintiff, he could only recover the amount of lumber which he had proved to have been wrongfully taken by. Wright, although it may have been commingled with the lumber of Wright wrongfully.” This was held to be error, the court saying: “The law, we think, is that if Wright wilfully or indiscriminately intermixed the lumber sawed from the logs of the plaintiff with his own lumber, so that it could not be distinguished, and the lumber so mixed was of different qualities or value, then the plaintiff would be entitled to hold the whole." Here, it is to be observed, the mixture was inferior in quality to the property taken.
If the mixture was of a quality superior to the innocent party's property, it seems that the latter should, on the same principle governing in cases of mixtures of goods of equal quality, be allowed to retake only his proportionate amount, if it is known.
§ 37. Remedies. Generally speaking, one may take that to the possession of which he is entitled, if he can
(13) 19 Wis. 126.
do it peaceably. So of the whole mass or of a part thereof, accordingly to the rights in the case.
If the result of the confusion is to create a tenancy in common, each tenant is entitled to possession of the whole. Neither has a right to take the mass from the other. It is, of course, competent for them to make a voluntary division of the mass and thus appropriate a definite portion to each. If they cannot agree, on strict principle the only recourse is to a court of equity to have a partition decreed or to have the property sold and the proceeds divided.
Strictly the action of replevin does not lie by one tenant in common to recover a portion of a mass in an undivided share of which he is owner, because replevin is an action to recover specific property described in the writ. This principle is recognized by some courts, and therefore they do not allow replevin to recover an undivided share in a mass (14). When, however, the property is readily divisible by count or weight or measure, the property claimed by the plaintiff can be easily described in the writ, and the objection to allowing the action—that replevin is for specific property and should not be used to make partition between tenants in common—is purely technical and does not commend itself to common sense. Many courts, therefore, in such cases allow replevin to recover an undivided share, e. g., so many bushels of grain from a larger quantity (15).
Where an intentional convertor of logs from plaintiff's
(14) LOW v. Martin, 18 Ill. 286; Read v. Middleton, 62 Ia. 317. (15) Freese v. Arnold, 99 Mich. 13.
land mixed them with other logs and sold the whole to defendant, who bought in good faith, the plaintiff was allowed to replevy from the mass an amount equal to that converted from him and had the right of selecting the quantity due him (16). Here the confusion was wrongful and replevin would probably be generally allowed in such cases, as the plaintiff had been made a tenant in common against his will, and he is to be treated as such only so far as necessary. If the original taking constituted a conversion or trespass, the one from whom the property was so taken has an action of trover or trespass. If the conversion has created a tenancy in common and one owner is in possession of the mass, his refusal to allow the other co-tenant to take his share is not, on principle, a conversion; for, as each is entitled to possession, it is no conversion for the one in possession to refuse to give it up even as to a part. However, here, as in the case of replevin, the courts have tended to take a common-sense view of the situation, to waive the technical objection, and to allow trover by one co-tenant of a divisible mass against the other who has refused to permit the plaintiff to take his share (17).
(16) Blodgett v. Seals, 78 Miss. 522. (17) Stall v. Wilbur, 77 N. Y. 158.
TRANSFER OF TITLE TO PERSONAL PROPERTY.
SECTION 1. IN CONSEQUENCE OF JUDICIAL PROCEEDINGS.
§ 38. Judgments in rem. Two classes of judgments are recognized, judgments in rem and judgments in personam. The importance of the distinction, with respect to the transfer of title to personal property, lies in the nature of the title conveyed to a purchaser of property sold under one or the other kind of judgment. The principal difference is as to the conclusiveness of the judgment in cutting off the rights of parties interested in the property. A judgment in rem is an adjudication pronounced upon the status of some particular subject matter by a tribunal having competent authority for that purpose (1). Where the process is to be served on the thing itself, and where the mere possession of the thing itself, by the service of the process and making proclamation, authorizes the court to decide upon it without notice to any individual whatever, it is a proceeding in rem, to which all the world are parties (2).
A certain ship had been condemned by a French admiralty court as a Dutch ship, France and Holland being then at war. The plaintiff purchased the ship on the sale held under the decree of the admiralty court. The
(1) Woodruff v. Taylor, 20 Vt. 65.
ship was not in fact a Dutch ship but was an English ship. The defendants, servants of the English owner, seized the ship on his behalf. In an action of trover the plaintiff recovered (3). The proceeding was one in rem and good against the world by the law of nations. In such cases the tribunal has jurisdiction not merely over the rights of the parties, but also over the disposition of the thing itself, and it directs that the thing itself and not merely the interest of a particular party be sold. Hence, all rights of all persons claiming an interest in it are cut off, and a perfect title is conveyed to a purchaser under such a judgment.
§ 39. Judgments quasi in rem. There is a class of judgments that appear to be judgments in rem in that they direct the disposition of particular property or determine its ownership but which are not true judgments in rem because they do not purport to bind any persons except those who have been made parties to the proceeding. Thus, in an action against A the goods of B were attached. B was not a party to the attachment suit. It was held that the attachment did not bind the goods or cut off the rights of B. Although the attachment proceedings are called in rem, the attaching creditor can acquire through his attachment, no higher or better rights to the property or assets attached than the defendant had when the attachment took place (4). In such cases if the property is sold, the purchaser acquires no other or better title than the defendant had.
(3) Hughes v. Cornelius, 2 Show. 232. (4) Samuel v. Agnew, 80 Ill. 553.