Moses v. Morris

The opinion of the court was delivered by Horton, C. J.: The facts in this case were, that on 19th November 1874, an attachment was levied upon certain personal property belonging to I. N. Morris by the creditors of one Thos. L. Morris, as the property of said debtor. Geo. N. Moses, as sheriff, served the writ. Afterward judgment was obtained in the action; and on 13th January 1875 an order of sale was issued to said Moses as such sheriff, and on January 25th he sold at sheriff’s sale the said personal property to one C. F. Diffenbacker, to whom the property was then delivered, and who then took actual possession and control of the same. Thereafter sheriff Moses had no interest in the property, nor care over it. On February 10th, the defendant in error, I. N. Morris, instituted in the district court of Barton county an action of replevin to obtain the possession of said pi’operty, and made said Moses and Diffenbacker the defendants. Prior to the sheriff’s sale of the property, (January 25th,) a demand had been made by I. N. Morris of the sheriff for the property, and after the sale to Diffenbacker a like demand for its possession was made upon him. The defendants answered jointly, filing a general denial. On the trial, a j udgment was rendered in favor of Morris, plaintiff, against both defendants, for a return of the property in controversy, and in case the property could not be delivered back, then for the sum of $75, the value of the property, and also for $85 for damages sustained by the wrongful detention of said property, together with all costs. The defendant [212] Moses filed his motion for a new trial, on the grounds, among others, that the verdict of the jury was not sustained by the evidence; that the special findings of the jury did not sustain the verdict, and for errors of law occurring on the trial and excepted to. The jury, at Moses’ request, also made special findings, as follows: (Jwes.-Did G. N. Moses, as sheriff of Barton county, have the property in controversy in his possession at the' commencement of this action ? Ans.-No. Ques — When did G. N. Moses sell said property? Ans — On the 25th of January 1875. Ques — To whom did he sell? Ans.-To C. F. Diffenbacker. §Mes.-Who took possession of and moved said property? Atis.-C. F. Diffenbacker. Ques. — Did the-plaintiff demand said property of C. F. Diffenbacker before the commencement of this suit? Ans.— Yes. The motion for a new trial was overruled, and the case is here for review. The district court erred in not sustaining the motion for a new trial, as the evidence in the case and the special findings of fact were all against the verdict. On the 10th of February 1875, when the action of replevin was commenced by the defendant in error, the plaintiff in error was not wrongfully detaining the possession of the property sued for, as he then had neither the actual nor constructive possession of the same; neither did he have such possession conjointly with his co-defendant Diffenbacker;- nor was there any joint detention by him with Diffenbacker. After the sale of January 25th, Moses had nothing whatever to do with the., property, and was indifferent to it. All the evidence was one way. There was no conflict, and no variance. The action of replevin under the code is purely a statutory one, and the writ cannot issue without the affidavit of the party, or his agent or attorney, showing the property is wrongfully detained. If a defendant, in good faith, and prior to the commencement of the action, has parted with all legal and actual possession of the property sought to be recovered, and the.party suing out the writ has notice of such fact, (as [213] in this case,) certainly he would not be justified in swearing that such party, simply because he once had the possession, was still wrongfully detaining the same. If so, the wrongful detention might ante-date the suit many months, even years. Without either actual or constructive possession, there is no power to deliver the property; and in the absence of such possession, it cannot be said that a defendant -wrongfully detains the property. He may have committed acts which make him liable in damages; and he may be liable for the value or use of the property in an action of another form; but the action of replevin is not the proper remedy in such instances. Town of Leroy v. McConnell, 8 Kas. 273; Wilson v. Fuller, 9 Kas. 176; Yandle v. Crane, 13 Kas. 344; Brown v. Holmes, 13 Kas. 482; Ladd v. Brewer, 17 Kas. 204; Bogan v. Stantenburgh, 7 Ohio, 474; State of Ohio v. Jennings, 14 Ohio, 73. Upon the undisputed facts in the case, no judgment should have been rendered against the plaintiff in error. The counsel for the defendant in error has referred to Nichols v. Michael, 23 N. Y. 264, as conclusive; but we find upon examination of the case that all the court really decided therein, upon this point, was, that the fraudulent vendee of goods, and his assignee thereof for the benefit of creditors, are liable in a joint action by the vendor to recover possession. “In this view of the case,” say the court, “an action properly laid against the vendee, Primer, notwithstanding he had assigned and delivered the property to Michael. Michael was not a bond fide purchaser; the property was in his custody as trustee for the benefit of Primer’s creditors, Primer having an interest in the residuum after paying his debts.” The case at bar is not a parallel one with Nichols v. Michael, supra, and this decision is not in conflict therewith. Holding the general rule to be, that an action to recover the possession of personal property can be maintained only against him who has the actual or constructive possession of the same at the commencement of the suit, and there being no special circumstances taking this case out of this rule, the judgment [214] of the district court against the plaintiff in error must be reversed, and the case remanded. All the Justices concurring.