Hooker v. . Latham

Avery, J.: The action is brought to recover possession of a mortgage deed executed by one Edmonds to Isaac A. *186 Sugg, together with two notes secured by it, and also an absolute deed from Sugg to William Whitehead conveying the same land. The provisional remedy of claim and delivery was also resorted to, as ancillary to the first cause of action, thereby giving to it the characteristics of the old common law action of replevin, which could be maintained only for the recovery of specific personal chattels wrongfully in the possession of another, as appears from the definition given in the books. 20 Am. & Eng. Enc., p. 1041; 7 Lawson R. & R., Section 3641, and 3639; Cobbev on Rep., Sec. 2. The plaintiff liad bought at execution sale, subsequent to the date of the alleged deed from Sugg to Whitehead, and the sheriff had conveyed to him by virtue thereof the interest of Whitehead in the same land described in the Sugg deed and mortgage. The first cause of action, upon the face of the complaint, appears to have been brought solely to regain possession of the specific deeds mentioned, and damages for detention. The general rule is that replevin, or this provisional remedy which serves the purpose of a substitute both for replevin and detinue, will lie for the recovery either of deeds or certificates of stock, where the object is to regain possession of the specific paper, and not to test the right to the property which it represents. But neither the common law action nor the provisional remedy of claim and delivery can be maintained for the unlawful taking or the wrongful detention of a title deed, where there is a dispute about its delivery, and the controversy involves the determination of the-title to the land conveyed by it. Cobbey, sufra, Sec. 79; 7 Lawson, supra, Sec. 3643; Flannigan v. Coggin, 71 Wis., 28. In his second cause of action, the plaintiff alleges that he is the owner and entitled to the possession of the deeds, *187 and that, the defendants wrongfully converted them to their own use. Trover and conversion at common law was an action on the case, brought to recover damages for the wrongful taking of personal chattels from the owner or one having right to possession of them, and the wrongful conversion of them to the irse of the latter. The use of the word “ conversion ” where the object is to acquire possession of particular property, and the judgment demanded and rendered is for its recovery with damage for detention, does not change the character of the action. It is not necessary therefore to determine whether upon the facts an action for trover and conversion, or in the nature of it, could have been maintained, or whether the reason which precludes a recovery, when the action is brought for the specific chattel, would not apply when under the guise of seeking damage for the wrongful conversion of a deed, it is apparent that the object is to estop a party from setting up a title to the land conveyed by it, by a finding that it had not been delivered to him. Martin v. Thompson, 162 Cal., 618-45 Am. Rep., 663. The plaintiff cannot maintain this action. Before the enactment of the late statute (Laws 1893, Ch. 6) he might have tried the title by an action against a trespasser in possession, but now under its provisions he may also sue a claimant who is nof- an occupant, and force him to disclaim or defend his title. Had either remedy been resorted to, the court during the pendency oí the action would have had the power to order the production, and, if deemed necessary, the deposit with the clerk in the custody of the cou’-t of all the papers mentioned in the pleadings, and in passing upon the issues involved the conflicting testimony offered in this case, or so much of it as would have been relevant, might have been heard. It is unnecessary to-pass upon the exceptions to the competency of evidence, *188 when, in no aspect of it, either including or excluding the testimony objected to, would the plaintiff be entitled to recover.' The judgment below is reversed. Let this opinion be certified to the end that judgment may be entered accordingly. Reversed.