ber on the land without the consent of the owners of the remaining interest, who are tenants in common with him of the land, if he cuts such timber and removes it, and it is taken possession of by such owners of the remaining interest, he has no such right of possession in it as will sustain an action of replevin by him against them. 3. SAME-PENNSYLVANIA STATUTE. The Pennsylvania act of May 15, 1871, No. 249, 26, which provides as follows: "In all actions of replevin, now pending, or hereafter brought, to recover timber, lumber, coal, or other property severed from realty, the plaintiff shall be entitled to recover, notwithstanding the fact that the title to the land from which said property was severed may be in dispute: provided, said plaintiff shows title in himself at the time of the severance," has no operation as between tenants in com mon. In Error to the Circuit Court of the United States for the Western District of Pennsylvania. Geo. Shiras, Jr., for plaintiff in error. John Dalzell, for defendant in error. BLATCHFORD, J. This is an action of replevin brought in the circuit court of the United States for the Western district of Pennsylvania to recover a quantity of square white pine timber logs in rafts. At the trial the court directed a verdict for the defendants, and after a judgment accordingly, the plaintiff has brought this writ of error. The defendants who pleaded, setting up property in themselves, were one Arthurs, assignee in bankruptcy of Baum and Carrier, and one McClure. Each party, plaintiff and defendants, claimed title to the timber under Baum and Carrier and one Osborne, who had title before December 18, 1872, to the lands from which the timber was taken. On that day, Baum, Carrier, and Osborne made a written agreement with one Phillips to the effect that they would convey to him, his heirs and assigns, by warranty deed in fee-simple, the undivided one-half of certain specified lands, in the counties of Clearfield and Jefferson, in the state of Pennsylvania, on his paying the consideration and performing the covenants mentioned in the agreement. These were that he should pay them $125 per acre for such undivided one-half, amounting to $206,000; "payment thereof to be made out of the proceeds of said lands, when and as soon as moneys shall be realized from the sale of any part of said lands, or from the sale of timber thereon, or coal or other minerals therein contained, or lumber manufactured upon said premises in mills thereon to be erected, as hereinafter mentioned and provided for." Phillips was to pay no interest, and to have the right to pay at any time the consideration money for the whole or any part of the lands, and receive a deed. Phillips agreed "to advance and pay the one-half of such amounts of money as may be necessary to construct and erect a first-class sawmill or saw-mills, and such fixtures and machinery appurtenant thereto, and such other and additional improvements" as he (Phillips) might, "from time to time, consider and determine to be advantageous and necessary for the profitable and full development" of the lands. Then followed these clauses: "And the said saw-mills, machinery, and other improvements shall be located on such parts of said lands as may be mutually agreed upon by the said parties of the first and second parts herein named, holding as tenants in common and not as partners. And it is hereby expressly covenanted and agreed that the said Wm. Phillips, party of the second part named in this agreement, shall have the right and power to control all improvements made or to be made on said property, and to direct and manage the development of the lands herein described and held by said parties hereto as tenants in common, and not as partners. Phillips died, and his administrators, in June, 1874, assigned to the plaintiff and one Whitney all the interest of Phillips under the agreement of December, 1872, and in and to the lands described therein. At the same time the heirs at law of Phillips quitclaimed to the plaintiff and Whitney the undivided one-half of the said lands so agreed to be conveyed to Phillips. The timber in question was cut and taken from those lands. Under a contract between the plaintiff and Whitney and one McCracken, made in September, 1876, the latter agreed to cut from the lands a specified quantity of square pine timber for a stipulated price, and deliver it to the plaintiff and Whitney at Pittsburgh. In April, 1877, Whitney assigned to the plaintiff all his interest in that timber. McCracken, in pursuance of this contract, cut from the lands the timber in question. It was taken by the marshal under the writ in this suit, in April, 1877, and was bonded by the defendants and delivered to them. The foregoing facts being proved at the trial, the court instructed the jury that the plaintiff had failed to show sufficient property in the timber to sustain replevin, and directed a verdict for the defendants, to which direction the plaintiff excepted. *It is contended for the plaintiff that Phillips acquired a right to the possession of the lands as a tenant in common, and a right to cut and market the timber, with a view of paying the consideration for the purchase; that such rights had passed to the plaintiff; and that a verdict for the plaintiff should have been directed, or else the case should have been left to the jury under proper instructions. The most that was shown by the evidence was that the plaintiff claimed title to the timber as being a tenant in common with the defendants of the lands from which it was cut, (it being stated in the bill of exceptions that both plaintiff and defendants claimed under Baum, Carrier, and Osborne;) and that the suit was against the defendants, being such tenants in common with the plaintiff, and in possession of the timber. It is a well-settled principle that, to maintain an action of replevin, a person must have, not only some right of property, but the right of possession. Hence, a tenant in common cannot maintain replevin against a co-tenant, because they have each and equally a right of possession. This rule is recognized in Pennsylvania. In Wilson v. Gray, 8 Watts, 25, 35, it is said: "The defendant may plead property in the plaintiff and himself, and, if true, it must not only defeat the plaintiff in his writ, but entitle the defendant to a return of the property; because the latter, having had the possession of it, coupled with an interest, which makes his case the stronger, until improperly deprived thereof by the sheriff, under the plaintiff's writ, which he had no right to use for such purpose, has a right to be placed in statu quo; that is, restored to the possession of the property as the joint owner thereof." The terms of the agreement with Phillips did not give him any title to, or right of possession in, any timber which might be cut from the premises. He was to have a deed of an undivided half of the lands when he should pay the consideration and perform the covenants. The purchase money could be paid out of the proceeds of the sale of the lands, or out of the sale of timber, coal, or minerals, or lumber manufactured on the premises in mills to be erected thereon, as provided for in the agreement. But no land or timber could be sold unless the owners of the other undivided half of the lands should join with Phillips in a sale, and then one-half of the purchase money would belong absolutely to the former, and only the other half to Phillips, to be applied on his purchase. There was nothing in the agreement which gave Phillips any right to cut timber on the premises without the consent of the other parties, and their consent that McCracken, or the plaintiff, might cut and remove the timber is not shown. The plaintiff cites the Pennsylvania statute of May 15, 1871, No. 249, (Sess. Laws 1871, p. 268; 2 Purd. Dig. p. 1266, § 6,) which provides as follows: "In all actions of replevin now pending, or hereafter brought, to recover timber, lumber, coal, or other property severed from realty, the plaintiff shall be entitled to recover, notwithstanding the fact that the title to the land from which said property was severed may be in dispute: provided, said plaintiff shows title in himself at the time of the severance." This statute has no operation as between tenants in common, but applies only to actions against third persons; and its object is only to prevent a defendant, in a replevin suit of the character mentioned, from setting up a dispute, as to the title to the land, between the plaintiff and a person other than the defendant, if the plaintiff shows a title to the land, as against the defendant, at the time of the sev-♦ erance. Besides, the plaintiff here showed no title at all to the land in himself. Judgment affirmed. (115 U. S. 477) DREW and another v. GRINNELL and another, Executors, etc. CUSTOMS DUTIES-SILK LACES "SPOTTED OR DOTted Net." Under section 8 of the act of June 30, 1864, c. 171, (13 St. 210,) imposing a duty of 60 per cent. on "silk laces," and a duty of 50 per cent. on "all manufactures of silk, or of which silk is the component material of chief value, not otherwise provided for," an article of silk and cotton, bought and sold as "spotted or dotted net," but which was a lace, in which silk was the component material of chief value, was a "silk lace," and subject to a duty of 60 per cent. In Error to the Circuit Court of the United States for the Southern District of New York. Wm. Stanley and E. B. Smith for plaintiffs in error. Sol. Gen. Goode for defendants in error. Blatchford, J. This action was brought by the plaintiffs in error, against the collector of the port of New York, to recover $17.50 as duties illegally exacted on an importation of merchandise into New York, from Liverpool, England, in 1869. At the trial, in 1881, the defendants, executors of the collector, had a verdict, on which there was a judgment in their favor, to review which this writ of error is brought. The question involved arose under section 8 of the act of June 30, 1864, c. 171, (13 St. 210,) which provided that, on and after the first of July, 1864, in lieu of the duties theretofore imposed by law on the articles thereinafter mentioned, there should be collected, on the merchandise enumerated in that section, the following duties: "On silk vestings, pongees, shawls, scarfs, mantillas, pelerines, handkerchiefs, veils, laces, shirts, drawers, bonnets, hats, caps, turbans, chemisettes, hose, mitts, aprons, stockings, gloves, suspenders, watch-chains, webbing, braids, fringes, galloons, tassels, cords, and trimmings, 60 per centum ad valorem. On all manufactures of silk, or of which silk is the component material of chief value, not otherwise provided for, 50 per centum ad valorem." The merchandise was invoiced and entered as "white cotton and silk spot net." The collector exacted a duty on it of 60 per cent., as being "silk laces." The importers contended that it was a manufacture of which silk was the component material of chief value, not otherwise provided for, and subject to a duty of 50 per cent. The bill of exceptions contains the following statements: "Plaintiffs produced witnesses who testified that the merchandise in question was a manufacture made partly of silk and partly of cotton; that the ground of the fabric was silk and the spot upon it was cotton, but the fabric was made substantially of silk, and the article was universally bought and sold under the name of 'spot or dotted net,' and never by the name of 'silk lace;' and that there was, in 1864, and has been ever since that time, a well-known class of goods imported into this country, which was made wholly of silk, and other and different from the merchandise in question in this action, which was bought and sold under the name of 'silk lace.' Plaintiffs offered testimony tending to show that the fabrics commercially regarded as 'silk laces' were finished on one side in figures in the form of a scallop, as a rule, and having finished edges, and that lace edgings were known as 'silk laces;' that, among laces known as 'silk laces,' are Spanish laces, Pushee laces, blond laces; that all laces which are known in commerce as 'silk laces' are made on a machine; that there were minor classes of laces included in the general class of 'silk laces,' and each class is composed of several kinds of laces, which go by distinguishing names, so that, if a person should come into a store and ask for 'silk laces,' it would not be possible to tell what particular silk lace he wanted until he should specify by its particular name the particular variety wanted; that there were different names for different kinds of nets, and, if a person should simply ask for net goods, it could not be ascertained what particular article he required until he mentioned its specific distinguishing name; and that there were curtain nets, bobbinets, Brussels nets, Mechlin nets, zephyr nets, mohair nets, illusion nets, and a variety of others. But plaintiffs' witnesses, upon crossexamination, testified that the term 'silk laces' was not a commercial term used to designate a particular article in trade, but was a general term, and that each particular silk lace had a specific trade name, such as Valenciennes, Bretonne, and a variety of other names. Plaintiffs' counsel having rested their case, the defendants' counsel called witnesses who testified, in behalf of the defendants, that they were, and had been for twenty years, wholesale dealers in, and importers of, silk laces, and were also wholesale dealers in and importers of goods like the goods which were the subject of controversy in this action; that the term 'silk laces' was not generally regarded, in trade and commerce in the United States, among wholesale dealers in and importers of laces, as a commercial term, used to designate any particular article of trade, but was generally understood to include all laces which were made wholly or substantially of silk; that each particular lace had a particular trade name; that the goods which were the subject of controversy in this suit were a particular kind of silk lace, called 'spotted or dotted net;' that they were made upon lace machines; that, in trade and commerce generally, in the United States, laces were understood to be delicate, thin, ornamental net-work, the meshes of which were formed by plaiting together threads of silk, cotton, or other material; and that the goods which were the subject of controversy in this suit corresponded with that definition." Both parties having rested, the plaintiffs requested the court to direct a verdict for them. This was refused and they excepted. They then requested the court to charge the jury as follows: "(1) That, if the jury find that goods such as those in question were not generally known among wholesale dealers in, and importers of, the articles, in buying and selling, at and prior to June 30, 1864, in our markets, under the commercial name of 'silk lace,' then the plaintiffs are entitled to recover. (2) That, if the jury find that goods such as those in question*were generally known, among wholesale dealers in, and importers of, the article, in buying and selling, at and prior to June 30, 1864, in our markets, under the name of 'nets,' or 'spot nets,' or 'dotted nets,' or 'silk and cotton spot nets,' and not as 'silk laces,' then the plaintiffs are entitled to a verdict. (3) That, testimony having been given and not contradicted, that the goods in suit were manufactures of silk and cotton, in which silk was the component material of chief value, the plaintiffs are entitled to recover, unless the goods were known in trade and commerce, in this country, by importers, as 'silk laces.' (4) That, if the jury find that the goods were not commercially known among wholesale dealers in this country, as 'silk laces,' at the time of the passage of the act of June 30, 1864, plaintiffs are entitled to recover. (5) That it is immaterial whether goods like plaintiffs' importations were or were not known as 'laces,' if they were not known commercially as silk laces.' (6) That, plaintiffs having shown without contradiction that the articles in controversy were composed of silk and cotton, the presumption, in the absence of proof, would be that the laces were not silk laces." The court, as to each proposition, refused so to charge, and the plaintiffs excepted to each refusal. The court then instructed the jury "that, if the plaintiffs' importation was not a silk lace within the meaning of the act of June 30, 1864, the plaintiffs were entitled to recover; that it was a silk lace within the meaning of the act, if it was a lace of which silk was the component material of chief value, unless, at the time the act was passed, it was commercially known, by importers and dealers in such articles, in this country, as a different article; that, if it was commercially known as 'spot net' or 'dotted net' instead of 'lace,' it would fall under the clause relating to manufactures of silk, not otherwise provided for; but, if it was called by such name only to distinguish it from other varieties of silk lace, all silk laces being known by some particular name which distinguished one variety from the others, it was, nevertheless, a 'silk lace' within the meaning of the act." There was no exception taken to any part of, those instructions. * The jury having retired, came into court for further instructions, and the court charged them that the first clause of the eighth section imposed a duty of 60 per cent. "upon articles which were made all of silk, or which were made of silk and cotton, in which silk was the controlling element, if they were known among merchants as silk goods." To this charge the plaintiffs excepted. We think the case was, in view of the evidence, fairly and properly presented to the jury by the court. The jury were, in substance, told (1) that the plaintiffs were entitled to recover if the article was not a silk lace; (2) that it was a silk lace, if it was a lace of which silk was the component material of chief value, unless at the time the act was passed it was commercially known here as a different article; (3) that, if it was commercially known as "spot net" or "dotted net," it would fall under the 50 per cent. clause, but if it was so called as one of the varieties of silk lace, each of which had a particular distinguishing name, it was, nevertheless, a silk lace within the meaning of the act. The instructions asked for went upon the erroneous view, that an article could not be a silk lace, within the act, unless it was bought and sold by the commercial name of "silk lace." This was the substance of all the instructions asked. Although the article was composed of silk and cotton, yet, if silk was the component material of chief value, and it was a lace, and was known among merchants as a silk lace, it clearly fell within the 60 per cent. clause, although a lace wholly of silk also fell within that clause, as a silk lace. The evidence on both sides was to the effect that the term "silk laces" was not a commercial term for a particular article, but included all laces made wholly or substantially of silk, each particular lace having a particular trade name, and the article in question being a particular kind of silk lace, called "spotted or dotted net." Judgment affirmed. 1. VENDOR And Vendee-MORTGAGE-ASSUMPTION BY VENDEE. A mere agreement to take land subject to an incumbrance specified in the deed is not an agreement to assume and pay the incumbrance. To render the vendee personally liable there must be words importing that he will pay the debt. 2. PRINCIPAL AND SURETY-SALE OF PROPERTY SUBJECT TO MORTGAGE TO SECURE PAYMENT OF NOTE-EXTENSION OF TIME ALLOWED PURCHASER. Where a party buys real estate, subject to a deed of trust given to secure payment of a note, and his deed simply recites that it is made "subject to such deed of trust," and on the maturity of the note the purchaser represents that he is not able to pay the money, and further time is allowed by the holder, without any agreement being made with the maker of the note, and on foreclosure of the deed of trust there is 1 See note at end of case. |