Swope v. Crawford

Opinion by W. D. Porter, J., This is an action of replevin for a horse, brought by the plaintiff against Jesse McComsey and Charles Crawford. The defendants gave a joint claim property bond and retained the horse. The plaintiff filed a declaration, alleging a wrongful taking and retention of the horse by the defendants jointly. The defendants, on September. 11, 1897, jointly pleaded non cepit and property. McComsey died before the case was tried, and, on June 7, 1899, his death was suggested of record. The jury was sworn to try the issue between Swope and Crawford, the surviving defendant. Where, in an action of replevin, the property is retained and bond given by the defendant, the plaintiff’s right to the property is turned into a chose in action; his property in the thing itself is absolutely gone. If the plaintiff subsequently recovers, the defendant is answerable in damages for the taking and detention up to the time of the delivery, and, in addition, for the full value of the property. The property itself can in no e.vent be recovered at law from the defendant; nor can he tender it afterwards, in discharge of the action, or even in satisfaction pro tanto of the damages claimed. Even the right of recaption in the plaintiff is determined by the election of the remedy by action. “Where the property is retained by the defendant, [482] the plaintiff in replevin must declare that the defendant yet hath and detaineth the goods, and he shall have judgment to recover all in damages as well the value of the goods as damages for the taking of them: Fisher v. Whoollery, 25 Pa. 197; Hockey v. Burkhalter, 68 Pa. 221. It was argued by the learned counsel for the appellant that this principle was departed from in Baird v. Porter, 67 Pa. 105; but an examination of that case shows the contention not to be well founded. Baird had caused the property of Porter to be taken in distress for rent; Porter issued a replevin and Baird-gave a property bond and retained the property. Porter then filed a declaration alleging a wrongful detention of the property, and Baird then filed an avowry for rent in arrear. The avowry was demurred to, and it was held that if the landlord had the right to take the property as a distress for the rent due him, and to detain it for the period allowed for a replevin “ after such distress taken and notice thereof,” before proceeding to appraise and sell it in satisfaction of the rent, that he had no fight to retain it by giving a claim property bond, unless he had a general or special property in the goods which entitled him to the possession. It was his duty, under the law regulating the right of distress, to deliver up the goods as required by the writ, and, as his security for the rent, to look to the bond which the sheriff was required to take before making a deliverance of the distress. The defendant, by giving the claim property bond and retaining the goods, put it out of his power to set up as a defense to the replevin their distraint for rent in arrear. The demurrer was sustained, but the recovery had was damages for the value of the cattle. The first assignment of error is not well founded. The second, third, fourth and fifth specifications of error have their foundation in the contention of the appellant that, under the issue as framed, it was not competent for Crawford, as a defense to the action, to show that the title to the property was in McComsey. When a defendant in replevip pleads property, the title of the plaintiff is put in issue, and the action cannot be maintained without showing either a general or special property in the plaintiff, together with the right of immediate possession. If, upon the whole evidence, the plaintiff fails to establish these essential facts, to the satisfaction of the jury, he is not entitled to recover: Lake Shore & Michigan [483] Southern Railway Company v. Ellsey, 85 Pa. 288; Mathias v. Sellers, 86 Pa. 486; Strong et al. v. Dinniny, 175 Pa. 586. This defendant did not attempt to defend under the title of a stranger, with which his possession was not connected. The plaintiff made McComsey a party to the record, and had declared against him jointly with Crawford. The plea of the defendants was joint. Under the issue thus framed it was competent for the defendants to show title, or the right of possession in both, or either of them. The death of McComsey did not change the issue, which was to be determined by the pleadings of record. The issue was tried between the plaintiff and Crawford, but it was the issue which appeared upon the record. It was certainly competent for Crawford to show that the title and right of possession was in his codefendant. When the plaintiff went to a trial upon the merits under the joint plea of McComsey and Crawford, it was a tacit agreement to waive all matters of form, and left Crawford free to offer any evidence which would have been competent if he had specially pleaded title in McComsey: Lewisburg Centre, etc., Railroad Company v. Stees, 77 Pa. 332; Mathias v. Sellers, supra. If the jury found the facts to be as stated by the court in those portions of the charge which are assigned for error in the sixth and seventh specifications, then the sale by McComsey to Swope was conditional; and, if Swope failed to perform the conditions, McComsey had the right of recaption. The facts were impartially submitted to the jury, and the specifications of error are without merit. The title to the property having been vested in the defendants upon giving the claim property bond, they were at liberty to do what they pleased with it afterwards, and the eighth specification of error is dismissed. The title of the plaintiff, if any he had, was derived through the alleged purchase from McComsey ; he offered no evidence of any right adverse to that title. For tins reason it was not material to inquire as to the manner in which McComsey had originally acquired title, and the ninth assignment of error is not well founded. There is no evidence of any abuse of discretion by the learned judge of the court below in refusing a new trial, and the tenth specification of error is dismissed. The judgment is affirmed.