
    Phillips v. Stroup.
    Under the recording Acts, where a grantee of land neglects to record his deed, and the original owner executes another deed to one who takes with notice of the first deed, a vendee of the second grantee, who takes without notice, is protected.
    In an action of replevin to recover damages for hark removed from trees, where the defendant had notice that the plaintiff claimed title in the trees, the measure of damages is the value of the hark at the time and place where replevied, and not merely the value of the hark on the trees.
    In an action of replevin to recover damages for hark removed from trees, it is not improper practice to permit a statement of plaintiff’s claim, to he sent out with the jury.
    
    
      March 21, 1889.
    Error, No. 259, Jan. T. 1889, to O. P. Sullivan Co., to review a judgment on a verdict for plaintiff in an action of replevin to recover damages for bark removed from trees by Catharine H. Stroup against Jonathan Gr. Phillips, at Sept, T. 1886, No. 28. McCollum and Mitchell, JJ., absent.
    The facts concerning the title of the defendant, Jonathan Gr. Phillips, as against the plaintiff’s vendor, are stated in Phillips v. Swank, 120 Pa. Y6, and Swank v. Phillips, 113 Pa. 482.
    The defendant made the following offer, at the trial before Sittser, P. J.:
    “¥e propose to prove that, in 1850, Jonathan Phillips, being then in possession of the land under the agreement offered in evidence, having at that time made valuable improvements on the premises, consisting of a house and barn, clearing and cultivating of some fifty acres of land; and that, in the year 1860, he died on the premises, leaving in possession a family of eight children and their mother, the youngest .child, Jonathan, having been born the day after the death of his father; that the possession of the heirs of Jonathan Phillips was obtained through notice given by Henry Swank for David Phillips and through false representations and statements to Mrs. Phillips by David Phillips, he being at that time administrator of his son Jonathan; to be followed by proof that the plaintiff in this case was cognizant of these facts at the time she purchased the real estate from Henry Swank in 18Y5, and that the paper or conveyance from David Phillips to his son, Jonathan Phillips, was of such a nature that it could not be placed upon the records until the Act of 1SY8 was passed, so that if Jonathan Phillips, or his heirs, had desired or endeavored to have the same placed upon the record, they would not have been permitted to have recorded it for the reason that the law did not allow it; this, in connection with the paper already offered, for the purpose of showing the claim of the defendants in this suit to the land in dispute.
    The Court: You may show the death of Jonathan Phillips and that he was in possession of this property at the time he died; you may show who his children were, who his heirs were; you cannot give the evidence of the improvements which he put upon the property, because it is irrevelant and immaterial. The claim of the defendant in this property is founded on the conveyance of August 20, 1850, and that is valid, but no less valid whether improvements were put upon the property or not; it is not material in this case how David Phillips got possession of the property, if he did. You may show, if you can, that, at the time of the conveyance under which the plaintiff claims, or under which Mr. Swank claims, that the defendant, or some one under whom they claim, was in possession of the property; and further than that we think it is immaterial. The offer is rejected, but we will allow you to show as we have already said. Exception. [9]
    Counsel for defendant offered in evidence Appearance Docket No. 9, record of suit of Henry Swank against Alfred Phillips and Jonathan Phillips, in summons in ejectment for lot of land in Davidson township containing 248 acres and 48 perches. Summons tested Sept. 12,1881. Counsel offered the record in that case, as shown on the Appearance Docket, to be followed by proof that the 248 acres of land therein mentioned was the same land, or comprised the same land upon which the bark was peeled, for the purpose of showing that, at the time of bringing of that suit, the defendants were in possession of the premises as admitted by the plaintiff, and that said suit of ejectment was still pending and not determined, and until that suit was determined the ownership of this land could not be conclusively decided in a collateral proceeding.
    Counsel for plaintiff objected to the offer as irrelevant and immaterial, and not being between the same parties at all, and that the records here showed that it had been determined and determined in favor of the plaintiff.
    The Court: Mrs. Stroup purchased from Henry Swank on June 10, 1875, the ejectment suit was not brought until Sept. 12, 1881, nearly six years afterward. She cannot be affected by the action of Swank in bringing suit for the property after he had conveyed to her. We sustain the objection to the offer. Exception. [7]
    Counsel for defendant also offered in evidence the Register’s Docket to show that letters of administration upon the’ real estate of Jonathan Phillips were issued to David Phillips in the year 1860 or 1861. Counsel for plaintiff objected to the offer as irrelevant and immaterial. Objection sustained. Exception. [8]
    Steven Phillips, a son of Jonathan Phillips, was called as a witness for the defendant. The plaintiff objected to the competency of the witness to testify to anything prior to the death of Jonathan Phillips. Objection sustained and exception. [6]
    The court charged as follows:
    “ This is an action of replevin brought by Catharine H. Stroup against Jonathan Phillips. The action of replevin is brought for a number cords of bark, some at the railroad siding, some in the fields and some in the woods. The writ was issued on June 21, 1886, and, in July 1886, the sheriff returned that he had replevied the property described in the writ and delivered it to the defendant on a claim property bond. There is a dispute between the plaintiff and the defendant as to the title to this bark. Each party claims the title' to the land and the trees from which the bark was taken. The question for your consideration here, and the question which must determine which party has the right to recover is, who had the title to the land from which this bark was taken. We ascertain the title to the bark by inquiring into the title to the land. If the land from which the bark was taken was the property of the plaintiff, the plaintiff can recover; if it was the property of the defendant, the plaintiff cannot recover. It was agreed by the parties that, in August, 1850, David Phillips was the owner of the land from which this bark was taken, or a portion of it. It appears, by the evidence in the case, that, on August 20,1850, David Phillips conveyed this land to Jonathan Phillips by a writing; it seems this writing was not recorded until Jan. 2,1883. The evidence appears to be undisputed that Jonathan Phillips went into possession of this property, made some improvements upon it and died in possession. That then, by some means or other, David Phillips again got possession of this land, and, while so in possession of it, conveyed it to Mr. Henry Swank by an agreement dated October 16,1863, and the plaintiff has given in evidence a deed from Henry Swank and wife, to Catharine H. Stroup, plaintiff in this case, and dated June 10, 1875. The agreement between David Phillips and Henry Swank was recorded on May 15, 1882, sometime nearly, not quite, a year, I think, before the conveyance of David to Jonathan Phillips was recorded. The conveyance by David to Jonathan was recorded on Jan. 2, 1883, and the conveyance to Swank was recorded on May 15, 1882. The recording Acts make it the duty of a person who takes a conveyance to put his conveyance upon record within six months; if he fails to record his conveyance, and his grantor conveys the property afterward to a bona fide purchaser for a valuable consideration, that bona fide purchaser for a valuable consideration will hold the title to the property.
    
      “ The object of the Act is to prevent a person from taking a conveyance, putting it in his pocket and putting it in the power of his grantor to convey the same land afterward to another party, and take his money without conveying to him the title. And if a man will take a conveyance, and will fail to record it as required by law, and a bona fide purchaser for a valuable consideration afterward purchases the property and gets his conveyance upon the record first, he will have the right to hold the property, unless it is shown that he has had either actual or constructive notice of the prior conveyance.
    “Actual notice is where he is directly informed of the prior conveyance. If the party taking the conveyance records his deed, it makes no difference whether the second purchaser looks at the record or not; it is his duty to look at it, and the deed is constructive notice to him of that conveyance. If the person who takes the first conveyance fails to record his deed, and enters into possession of the property and continues in possession of it, his possession is notice to all the world of his title. But if he takes a conveyance, fails to record it, goes into possession, remains there for á limited period of time and then leaves it, and, after he has left it, the former owner goes into possession of it and makes a conveyance of it to a bona fide purchaser for a valuable consideration, that person will take and hold the title to the property.
    “ So that, upon the undisputed evidence in this case, the conveyance to Henry Swank having been first recorded, Henry Swank having purchased the property from David Phillips while David was in possession of the property, and while the conveyance to Jonathan was unrecorded, he would have a right to hold it, unless actual or constructive notice of some kind is shown Henry Swank.
    
      “On June 10, 1815, Henry Swank conveyed to O. IT. Stroup. [Now, even if Henry Swank had notice of the prior conveyance to Jonathan Phillips, yet if, while Henry Swank was in possession of this land, he conveyed to Catharine H. Stroup, and she was a bona fide purchaser and paid a valuable consideration for it, she would be entitled to hold it, notwithstanding the fact that Henry Swank, her grantor, had actual notice of this conveyance.] [1] The reason is that it is the duty of the party who takes a conveyance of land to record it, and put it out of the power of his grantor to make a second conveyance.
    “ If yon believe, from the evidence in this case, that Catharine H. Stroup is a bona fide purchaser of this land for a valuable consideration, she is entitled to recover in this case. There has been no evidence of any notice to her of this prior conveyance either actual or constructive.
    “ [If you find for the plaintiff, you should find for the plaintiff for the value of bark that was taken from the land of the plaintiff at the time and at the place where it was replevied. If the plaintiff is entitled to recover in this case at all, she has a right to recover for the bark. A writ of replevin is issued because the plaintiff claims she has the right to the bark itself, and if a claim property bond had not been given by the defendant here, it would have been the duty of the sheriff to have turned the bark over to the plaintiff, and the plaintiff could have sold it and obtained value for it. But the defendant gave a claim property bond and took the property. In such case, if the plaintiff is entitled to recover at all, she is entitled to recover for the value of the bark at the time and place where it was replevied.”] [5]
    The defendant presented, inter alia, the following points:
    “1. If the jury believe that Jonathan Phillips died in possession of the land in question as owner thereof and left to survive him minor heirs, who, during their minority, were ifiegally dispossessed, and then resumed possession before the expiration of the period of minority of all, and have retained their possession from 1881 to this date, the plaintiff cannot recover in this action. Ans. This we do not affirm. It was the duty of Jonathan Phillips to have his conveyance recorded within six months, and if he failed to do it and David Phillips afterward conveyed the property, when David was in possession of it, to some one else who paid value for it, a bona fide purchaser, unless yon can show actual notice to him of this prior conveyance, he has a right to hold the land.” [2]
    “ 3. If Henry Swank, the grantor. of the plaintiff, has, now pending, an action of ejectment to recover the possession of the land in dispute, and the defendants are in possession of the land, Mrs. Stroup cannot recover in replevin damages for peeling bark on land, the ownership to which is undecided, and for which an ejectment is pending. Ans. This is not affirmed. It appears that the conveyance to Mrs. Stroup was dated June 10, 1815, and the action of ejectment was not brought by Henry Swank until sometime in September, 1881, and, after Henry Swank has conveyed to Mrs. Stroup, he cannot, by any acts of his, affect her rights.” [3]
    “4. The measure of damages in this case, if any can be recovered, is the market value of bark on the tree in that neighborhood in the summer of 1886. Ans. This is not affirmed; we have already instructed you that, if the plaintiff is entitled to recover, she is entitled to recover the value of the bark at the time and place where replevied.” [4]
    The court, under objection, permitted the plaintiff to send out with the jury a statement of her claim. Exception. [10] No copy of the statement is printed in the paper book.
    Yerdict and judgment for plaintiff for $360.25.
    
      The assignments of error specified, 1, 5, the portions of the charge included within brackets, quoting them; 2-4, the answers to-defendant’s points, quoting them; 6-9, the rulings on the evidence,, quoting the bills of exceptions; and, 10, the action of the court in permitting the plaintiff to send out her statement with the jury, quoting the bill of exception.
    
      Ellery P. Ingham, with him W. E. Crawford, for plaintiff in error.
    Swank could not sell land that he never owned. The recording Acts cannot confer title where there is none.
    Phillips died in possession of the land, and his residence was-notice.
    The measure of damages was the value of the bark on the trees. Herdic v. Young, 55 Pa. 179; Sedgwick on Damages, 455-495; Coal Co. v. Dock, 62 Pa. 239; Coleman’s Ap., 62 Pa. 279; Young v. Lloyd, 65 Pa. 203.
    There was nothing in the proviso to the Act of 1869 to prevent Steven Phillips from testifying to matters occurring prior to the death of his father.
    It is not the practice in replevin to permit the plaintiff to send out a statement to the jury.
    
      E. M. Dunham, with him R. J. Thompson, for defendant in error.
    There was no error in the first and second assignments. The plaintiff was an innocent purchaser without notice of the prior' conveyance. Meehan v. Williams, 48 Pa. 238; Good v. Bausman, 6 W. N. C. 93; Boggs v. Varner, 6 W. & S. 469.
    The measure of damages in replevin is the value of the property when and where replevied. Herdic v. Young, 55 Pa. 176; Morrison v. Robison, 31 Pa. 456.
    The evidence of Steven Phillips was properly rejected. Swank v. Phillips, 113 Pa. 482; Sorg v. First Ger. Cong., 63 Pa. 160.
    It was within the discretion of the court to permit the statement of the plaintiff to be sent out with the jury. O’Hara v. Richardson, 46 Pa. 389; Little Schuylkill Nav. Co. v. Richards, 57 Pa. 148.
    The last assignment of error violates the rule requiring copies of all writings, and will not be considered by this court.
    
      March 25th, 1889.
   Paxson, C. J.,

This caséis free from error. The only question we think it necessary to refer to is the measure of damages. The defendant asked the court to instruct the jury that the measure of damages was the value of the bark on the trees. This the court declined, and charged that, if the plaintiff was entitled to recover, she was entitled to recover the balance of the bark at the time and place where replevied. This was entirely accurate. It is not disputed that the cutting of the trees was a trespass, and was done with notice that they belonged to the plaintiff, at least that she claimed title to them. Under such circumstances, there is nothing to take the case out of the general rule in actions of tort as to the measure of damages, and it would have been clear error to limit them to the value of the bark on the trees.

Judgment affirmed.  