Newman v. Jenne

The opinion of the Court was drawn up by Appleton, J. This is an action of replevin for a yoke of oxen, brought by the mortgagee against the mortgager. The oxen were left in the defendant’s possession, by whom they were worked in the woods hauling lumber. The suit was commenced without any demand upon the defendant for the oxen replevied. The doctrine is well settled that replevin lies in all cases where trespass de bonis asportatis will'lie. Wheeler v. McFarland, 10 Wend., 322. It depends on the same principles as the action of trover, and, where trespass or trover can be maintained, replevin will lie. Sawtelle v. Rollins, 23 Maine, 196. To maintain this action, there must be a tortious taking or wrongful detention. Unless there be a special agreement to the contrary, the mortgagee may at any time terminate the rights of the mortgager, and take possession of the mortgaged property. If the mortgaged goods be attached as the property of the mortgager, as in Melody v. Chandler, 12 Maine, 282, or sold by the mortgager, as in Whitney v. Lowell, 33 Maine, 318, such attachment or sale will be deemed a conversion by the officer so attaching, or by the person so purchasing, and the action of trover or replevin may be maintained by the mortgagee. “If the defendant came, lawfully into possession of the goods,” sayá Mellen, C. J., in Seaver v. Dingley, 4 Greenl., 316, “an action cannot be maintained, unless after demand and refusal, which are evidence of conversion. For the same reason, no action of replevin will lie for goods of which the defendant lawfully obtained the possession, until after & demand. From that time the detention is unlawful, and the case comes within the language of the writ of replevin.” The defendant was lawfully in possession of the oxen in contro [523] versy. He had not sold nor transferred them. He was using them, as well he might, till forbidden by the mortgagee, or until possession of them was démanded. There is no conversion of goods .for which trover will lie, unless there be a repudiation of the right of the owner, or the exercise of a dominion inconsistent with that right. Heald v. Carey, 9 Eng. Law and Eq. Rep., 492. The first requested instruction should have been given. Exceptions sustained. Tenney, O. J., and Cutting, Davis, and Kent, JJ., concurred.