Me. Justice Blatchford
delivered the opinion of the court. After stating the facts in the language above reported, he continued :
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 to 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, 85, 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 Purdon's Digest, 1266, § 6, which provides as follows: " In all actions of replevin, now pending or hereafter brought, to recover timber, ltmiber, 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 severance. Besides, the plaintiff here showed -no title at all to the land, in himself.
Judgment affirmed.