Behr v. Gerson

COLEMAN, J. The demurrer to the pleas raises two propositions : 1st, that a defendant in an action of detinue can not set up the title of a third person to defeat a recovery in detinue, without connecting himself with it; and, 2d, that if the defendant undertakes to set up a title in a third person, he must make affidavit, and pray that notice to such person be issued, to come in and defend. "Where the plaintiff can not show an actual prior possession, he must show a legal title, to authorize a recovery in detinue; but prior possession is sufficient, unless the defendant shows a better outstanding title with which he connects himsef. — Jones v. Anderson, 76 Ala. 427; Huddleston v. Huey, 73 Ala. 215; Jackson v. Rutherford, 73 Ala. 155; Hall v. Chapman, 35 Ala. 559. The second proposition involved in the demurrer to the pleas is not sustained by section 2611 of the Code, cited in support of it. This section, which provides that a defendant, when sued in detinue, may make affidavit that the property sued for is claimed by a third person, and pray for an order that such person come in to defend, was never intended to defeat the common-law right of a defendant to set up an outstanding superior title to plaintiff’s, with which he connects himself. If the defendant fails to avail himself of the benefit provided for him in section 2611, his liability to his bailor, or as the case may be, remains as it was without the statute. — Powell v. Ledyard, 76 Ala. 423. The demurrer goes to the whole of pleas 3 and 4. An examination of these pleas shows that they set up a state of facts which, if true, furnish a complete defense to the action, without reference to the defense of an outstanding title in a third person. The pleas distinctly aver that the defendants were not in possession of, and exercised no control over the property sued for, at the time of the commencement of the suit. This is the same defense set up in plea No. 2, upon which issue was joined. No other objection [442] than that specifically pointed, out by the demurrer can be considered by the court. — Eads v. Murphy, 52 Ala. 524; Ib. 107; Sledge v. Swift, 53 Ala. 110; Code, § 2690.. That deti-nue can be maintained only against a defendant in possession, is abundantly supported by authority— Graham v. Myers, 74 Ala. 434; Lightfoot v. Jordan, 63 Ala. 224; Henderson v. Felts, 58 Ala. 590; Miller v. Hampton, 37 Ala. 342. It was not controverted that plaintiff at one time owned the property. The evidence shows that plaintiff and his wife, who was a daughter of the defendant, M. L. Gerson, carried the property with them to defendant’s house ; that they boarded for a time with the defendants, using such of the property themselves in their own room as they saw proper for their own comfort, and a part of it was placed in different parts of the house for the use and convenience of themselves and the family generally, except the blankets, and crockery and cutlery. The crockery and cutlery seem to have been stored away in a china-closet, and neither these nor the blankets were ever in use by the defendants. The defendants’ evidence was to the effect that they set up no claim to the property, nor exercised any control of it, nor held possession of it further than as shown by the following-facts : that plaintiff and his wife carried the property with them to the house of defendant, and placed it in the house where and as they saw proper; that the wife of the plaintiff claimed it, and controlled it as her property, and that it was so recognized by the defendants. Such was the condition, disposition and possession of the property at the time the plaintiff left his wife at defendants’ dwelling, and when the suit was begun for the recovery of the property. The plaintiff does not testify that defendant had possession, further than may be inferred from the statement “that he left the property at the house of M. L. Gei-son, and that it was in use at the house of said M. L. Gerson, and that he left his wife there.” We hold the law to be, that when a boarder carries property with him to a boarding-house, and it is recognized wholly to be the property of the boarder, and subject to his control only, and no claim of right or possession is set up to it by tbe proprietor of the dwelling, such a possession by him is not that possession which will sustain a suit against him in detinue. We are clear that, if the possession is sufficient for this purpose, the proprietor may show an outstanding title in the boarder’s wife superior to the plaintiff’s, if he can; and this relation of the parties is sufficient to authorize the defendant to connect his possession with the outstanding title. [443] Tbe title of tbe wife in tbe present suit grows out of tbe legal construction of a written assigment made by tbe bus-band, tbe plaintiff, to tbe wife, on an insurance policy. It reads as follows: “Tbe interest of M. Bebr, as owner of tbe property covered by tbis policy, is hereby assigned to Bertba Bebr, subject to tbe consent of tbe Commercial Union Assurance Company, limited, of London. Oct. 3d, 1888.” (Signed) “M. Behr.” Tbe consent of tbe company to tbe assignment was proven. It is contended by plaintiff tbat these words only assigned tbe interest of plaintiff in tbe policy itself, but that tbe title and ownership of tbe goods remained in him. We can not consent to such a construction. Tbe words used by tbe assignor do not admit of such a meaning. Tbe “interest of M. Bebr, as oivner of tbe property,” is assigned. Such a construction as tbat contended for requires tbe imputation to tbe parties of an attempt to do an act against public policy; tbat is, tbat one may own tbe property itself, and another, without owning any insurable interest in tbe property, may own tbe policy of insurance. Looking at tbe words of assignment as they are, disconnected from all other proof, we bold tbat tbe ownership of tbe property passed by the written assignment. Commercial Fire Ins. Co. v. Capital City Ins. Co., 81 Ala. 320; Brown v. Com. Fire Ins. Co., 86 Ala. 189; Helmetag v. Miller, 76 Ala. 186. Tbe rulings of tbe trial court are in accordance with tbe principles above declared as applicable to tbis case. Affirmed.