Standard Varnish Works v. Cushing

Knowlton, C. J. Chattels taken under a writ of replevin are in the custody of the law. The bond given by the plaintiff stands as security to the defendant for a proper disposition of the property, according to the order of the court. At the trial of this action of replevin the plaintiff offered no evidence of its title or right of possession of the goods replevied, but filed a paper admitting that the testator of the defendant Milliken did not retain or have in possession the goods replevied when the writ was sued out. It asked the presiding judge to [582] instruct the jury to find for the defendant Milliken, on the ground stated in this written admission. The present defendant Milliken is the executrix of the will of Frank S. Milliken, who was the original defendant of that name, and was the holder of a mortgage on the replevied property. The judge declined to give the instruction, but instructed the jury to find for this defendant on the ground that the plaintiff had failed to show any title to the property replevied, sufficient to enable it to maintain the action. The plaintiff excepted to the instruction and to the refusal to instruct. A general verdict was returned for this defendant. These exceptions must be overruled. The first thing for the plaintiff to do in support of its claim was to prove title to the property and a right of possession of it. Its failure to do this was a sufficient reason for the return of a verdict for the defendant. Its failure to prove a taking or detention of the property by Milliken was also a good reason for the return of the verdict. The verdict returned and the record of the case do not show on what ground the jury reached their conclusion, and it is not necessary that they should. The second bill of exceptions is founded on the allowance of the motion of the defendant Milliken for an order of return of the property to her. The defendant Cushing and his trustee in bankruptcy had been defaulted. On the record, therefore, Cushing had no standing to ask for any order or proceeding in his favor. On his default the plaintiff’s case was established as against him. Under the verdict of the jury the plaintiff failed to establish his case against Milliken. It remained for the judge to determine, upon a proper application, what order should be made as to the possession of the replevied property. The plaintiff was content and asked for no order. The defendant Milliken moved for a return of the property to her. Ordinarily the verdict of the jury settles the rights of the parties in this particular. But sometimes it does not, and it then becomes the duty of the judge to inquire further and determine who is entitled to the possession. In this case the default of Cushing and the verdict in favor of Milliken, without more, did not enable the judge to decide who ought to have the property. Except by way of inference as against Cushing from [583] the default, the plaintiff proved no title or right of possession. The verdict of the jury showed no rights in the plaintiff as against Milliken. Thereupon the parties agreed that the judge might decide the question upon certain evidence which was to he taken as true. From this it appears that the plaintiff had no title or right of possession as against the defendant Milliken at the time of the hearing on the motion, and it was not shown to have had any right or title as against anybody. It appeared that Milliken had a good title as mortgagee when the writ was sued out, and that, very soon after, he had a right of possession for a breach of the condition of the mortgage, and that actual possession would have been obtained if the property had not been removed previously under a writ of replevin. In an action of replevin, the disposition of the property is to be ordered according to the rights of the parties at the time of the making of the order. Ware River Railroad v. Vibbard, 114 Mass. 458. Davis v. Harding, 3 Allen, 302. If the property had' been taken on this writ from the possession of Milliken, there is no doubt that a return to his executrix should have been ordered. But Milliken was not in possession of the property, and it is a general rule that a return cannot be ordered in an action of replevin to a person from whom the chattels were not taken. The principles to be applied under such conditions were somewhat considered in Whitwell v. Wells, 24 Pick. 25, 32, 33, 34, in which justice was worked out between the parties, in connection with a previous sale of the goods to enforce a lien. Said Mr. Justice Morton, “The object of a judgment in favor of the defendants, should be to place them in the same or as good a situation as they were in when the suit was commenced. More than this, no suitor ought to desire. The defendants never having had possession of the goods, ought not to acquire it by a suit against them. A decree to return the goods to the defendants would be absurd, as they never had the possession of them. . . . It sometimes happens, that, by a change of property, after the replevin and after the pleadings are closed, it becomes useless and improper to render such judgment as seems to be required by the state of the record. The facts upon which the pleadings are founded, cease to exist before the final judgment. In such case, [584] the court will receive evidence of the intervening facts, and render judgment according to the justice of the case at the time.” It is the purpose of the court in all these cases, so far as possible under the pleadings, to make such an order for the disposition of the property as is conformable to the rights of the parties before the court. Quincy v. Hall, 1 Pick. 357, 360. Barry v. O'Brien, 103 Mass. 520. Dawson v. Wetherbee, 2 Allen, 461. Johnson v. Neale, 6 Allen, 227. The only question of difficulty in this case is whether the fact that Milliken was not in possession of the property when it was replevied, although he had a perfect title by mortgage from the defendant Cushing who was in possession of it, will prevent the court from making an order that will restore him to his rights, of which he was deprived by the removal of the property under the writ. Milliken was made á joint defendant before the court. Although he was not techni.cally in possession when the writ was served, he had a right which, but for the service of the writ, would have put him in possession in less than two weeks, and which entitles his executrix to possession now. Upon the facts proved, if Cushing had not suffered default, the court would have ordered a return of the goods to him, of which Milliken would have had the benefit as owner under his mortgage, with a right of immediate possession. Shall the default of Cushing prevent the court from making an order for the proper disposition of the property, which will protect the rights of the true owner ? The relation of the defendant Milliken to the plaintiff as a party in the case, her relation to Cushing, who represented her husband’s right in the possession which he was maintaining, and her relation to the goods themselves as the real owner, are such that she is entitled to an Order for the return of them to the custody from which they were taken. If Cushing were before the court it would be his duty to ask for such a return. If he failed to ask for it, we are of opinion that she might ask for it on the ground that the law and the facts require it, and that it should be made for her benefit, as she is the only one interested in the goods adversely to the plaintiff. This would place her in the situation as to possession in which her testator was when the goods were replevied. What her situation would be* in reference to a remedy, if this action [585] were ended without any order as to the disposition of the property, we need not consider. The default of Cushing ought not to prejudice the other defendant in the maintenance of her rights. The replevin bond in the case is not before us, but we assume that it recites a taking of the property from the joint defendants under the writ and is conditioned in part upon a return of it to them if such is the order of the court. A return to the defendant Milliken would therefore be a compliance with the requirement of the bond in that particular. Under the recital in the bond the plaintiff is estopped to deny that the property was replevied from her husband, the original defendant Milliken, and that he was in possession of it. Upon the facts agreed justice will be done by a return to the present defendant Milliken, and we are of opinion that the order was correct. ¡Exceptions overruled,.