Wilson v. Rybolt

Perkins, J. Suit before a justice of the peace to recover possession of personal property, viz., a certain title deed to a lot of ground. Judgment for the plaintiff, on appeal to the Common Pleas. The first question is, whether a title deed can he recovered in this form of action. A title deed is a personal chattel; hut like the log chain of a saw mill, or certain other fixtures, it is so connected with, and essential to, the ownership of real estate, that it descends with it to the heir. Blackstone’s Comm. Book 2, p. 427; Hoskins v. Tarrence, 5 Blackf. 417. From a very early period chancery compelled the delivery of title deeds where necessary. Blackstone’s Comm., Shar’s Ed., Book 3, p. 153, note. Later they became recoverable in an action of detinue. Ghitty, in his work on Pleadings, (vol. 1, p. 122,) says, detinue “lies for the recovery of charters and title deeds,” &c. See Atkinson v. Baker, 4 Term Rep. 430. Now, what was the action of detinue? Blacks lone, in Ms Commentaries, (Book 3, p. 151,) thus describes its incidents : “ In order, therefore, to ground an action of detinue, which is only for the detaining, these points are necessary. 1. That the defendant came lawfully into possession of the goods, as either by delivery to him,- or finding them. 2. That the plaintiff have a property. 3. That the goods themselves be of some value; and, 4. That they he ascertained in point of identity. Upon this the jury, if they find for the plaintiff, assess the several values of the parcels detained, and also damages for the detention; and the judgment is [392] conditional; that the plaintiff recover the said goods, or, (if they can not be had,) their respective values, and also the damages for detaining them ?” Such was the common law action of detinue; and as it was an action for the recovery of personal property only we must hold that whatever could be recovered by it ivas regarded, for the purposes of this civil remedy, as personal property. The action of replevin, at eommon law, was originally of a more limited character. It lay to recover back property illegally distrained; but it afterward came into use in all cases where personal property was illegally taken. The two actions of detinue, for unlawful detentions, and replevin for unlawful takings, thus came to cover the whole ground of unlawful deprivations of personal property, so far as recovering the specific articles was concerned. 1 Chit. Pl. 162, 164. These two actions, viz'., detinue, and replevin, in their fullest scope, were formerly in use in this State. Ind. Dig., p. 46, et seq.; see Will, on Per. Prop., top p. 49. And it will. be seen at a glance, by inspecting the provision in the code for the recovery of personal property, that, it covers the entire ground of both actions. That provision is, (§ 128,) “ when any personal goods are wrongfully taken, or unlawfully detained,” &c. The jurisdiction of justices of the peace, as to the character of articles of property, is equally extensive. 2 R. S., § 71, p. 464. The conclusion irresistibly follows, that the possession of title deeds may be recovered in the action under the code for the recovery of personal chattels. If title deeds can not be recovered in this action, how can they be recovered at all? The possession of deeds of conveyance of real property is of much less consequence in this country than it formerly was in England,, because of our recording acts. The public records of conveyances disclose to purchasers, in most cases, the true condition of the title to real estate. In England., before registration acts were passed, (and now, in the portions of it where they are not in force,) the possession of the complete chain of title deeds was the evidence which the seller produced of his ownership; and, on a sale, the entire [393] series of deeds passed to the purchaser, so that the seller should have no evidence of title remaining, whereby he might be able to effect a second and fraudulent sale. Hence, on a purchase of land in England, ~wq discover a valid reason why an abstract of title, accompanied by the deeds constituting- the links in the chain, should be furnished. Will. on Real Prop., side p. 370, et. seq. Hut though the possession of deeds has become of less importance, the legal right to it is not probably changed; and even if it is as to prior deeds, it still remains as to the deei! of the immediate grantor of the plaintiff. Tl e second question made in the cáse is, whether the evidenc 5 established a right in the plaintiff to the deed sued for. The bill of exceptions does not contain the words, “this was all the evidence given in the cause.” As Jie plaintiff’ recovered below, we must, in the absence of the evidence, presume in favor of the judgment. Pm Guriam. — The judgment is affirmed, with costs.