Fenner v. Kirkman

GOLBTHWAITE. J. —We understand the charge requested by the appellant to assert the legal proposition, that if a defendant in detinue is proved to have possession of property belonging to the plaintiff before the commencement of the suit, a recovery can be had, if the property is in existence, although the defendant may without fault have parted with the possession and control before demand made, or suit commenced. [654] All the books agree, that the gist of the action of detinue is the detention, and not the original taking ; but whether it can be sustained for every detention,' before demand or suit, which is not under a finding or bailment, or authorized by the owner, is a question on which there is some conflict of authority ; but the form of the writ — which is, that the sheriff command A that he render to B one, <fcc., which he unjustly detains from him, &c. (Fitzherbert’s N. B. 823) — and the history of it, as given by the old writers, who speak of it in connection alone with the refusal on the part of the borrower or finder of the goods, to deliver them on demand of the true owner, or a bailee bound by his contract to deliver them at a certain time, and failing to do so, are persuasive to show that a possession at the time of the demand or suit was required. It is true that iii Comyn’s Digest, (.Detinue, A,) it is said, that the action lies, though the defendant quitted the possession before actiou brought; and lie cites Bro. Detinue. But we think that author refers to the cases to which the action was applied in those times; which were those we have already mentioned, — findings and bailments, in either of which instances, as he parted with the goods knowing that they did not belong to him, it might properly be regarded as a culpable disposition of them on his part; and if the goods were in existence, and the end of the action might therefore be accomplished, it would be against justice to allow the defendant to defeat it by proving his own wrongful act. But a very different case is presented, when one comes into possession by a lawful act, and in ignorance of the rights of the true owner, as by a purchase from one in possession, who has ostensibly the right to sell. Hls possession is not wrongful or unjust in the souse in which those terms are applied to the finder or borrower who refuses to deliver to the real owner upon demand ; and if he, without notice of title in another,’ parts with the control of the property before demand or suit, although he may be liable for the value in another form of action, it would ho unjust to hold him to deliver the specific goods. In cases of bailment, by the civil and French law, if the heir or administrator of a deceased bailee- sell the tiling in ignorance of the bailment, he is liable but for the price, and only when he has received it (Digest, lib. 16, tit, 3, o, 1; [655] Story on Bailments, § 101); and upon analogous principles, in the case we have put, the party should not be liable beyond the value of the thing sold and interest from the time of the conversion. What we have said is supported by the case of Fenner v. Walker, 20 Ala. 192, in which it is said, with regard to this action, “ that to enable the plaintiffs to recover, they must show that the defendant, either at the time of the demand made, or, in the event that there was no demand, at the time the writ was sued out, had the actual possession, or the controlling power over the property; unless, having- the possession anterior to such demand or suit, he has wrongfully, or to elude the plaintiff’s action, parted with it, or unless he holds it under a contract of bailment which he violates by failing to deliver it.”—See, also, Caldwell v. Ford, Riley 277; Kershaw v. Boykin, 1 Brevard 801; Charles v. Elliott, 4 Dev. & Bat. 468. So, in Harris v. Hillman, at this term, we held, that a purchaser at sheriff’s sale having subsequently hired out the slave bought, without notice that the plaintiff had any right, or intended to call in question the claim of the defendant ; and being thus divested of the control and possession of the slave at the commencement of the suit, no previous demand having been made, — the action was not maintainable on the prior possession. The question presented upon this record is fully covered by the last case cited. Judgment affirmed.