Lamotte v. Wisner

Robinson, J., delivered the opinion of the Court. This is an action of replevin brought by the appellee to recover certain cattle found in the possession of the defendant. The defendant, now appellant, pleaded: 1st. Non cepit. 2nd. Property in George W. Stocksdale, as bailiff. 3rd. Property in Benjamin I. Worthington. 4th. That the plaintiff had no property in the cattle. At the trial the plaintiff proved, that the cattle in question formerly belonged to one Beñjamin Worthington; that in May, lSll, they were driven by him from his farm in Baltimore County to the farm of the plaintiff in Carroll County and there sold to him; that after said sale they were taken from the possession of the plaintiff, and put in the possession of the defendant. The defendant, on the other hand, proved that on the 26th of January, 1877, the cattle were taken under a distress for rent due by the said Benjamin Worthington to Benjamin I. Worthington, that they were left in the possession of the tenant at his request, and upon the faith of an agreement by him to pay the rent on or before the first day of May following, and upon his failure to pay at that time, the cattle were to be sold under the distress. Evidence was also offered to show that the plaintiff was not a bona fide purchaser'without notice. [559] There can be no difficulty-, we think, in regard to the well settled principles by which the several questions presented by the record are to be determined. At common law the landlord had no right to sell property taken under a distress, but was obliged to keep the same as a pledge until it was redeemed by the tenant. The power to sell was first conferred by Statute 2 William & Mary, and under its provisions, distress soon became a speedy and efficient remedy for the collection of rent. The statute provided that unless the tenant or owner replevied the property within five days after the distress and notice thereof, the person distraining was authorized to have the distress appraised, and after such appraisement to sell the same towards the satisfaction of the rent and expenses incident to the distress. Now in this case the property was left in the possession of the tenant unsold at his request, and upon his agreement to pay the rent on or before a day named, and as between him and the landlord, it remained subject to the lien acquired under the distress. If, however, the landlord permitted the cattle to remain in the possession of Benjamin Worthington, the tenant, for an unreasonable length of time, without making a sale under the distress, namely, from the 26th of January to the first of May following, and they were then driven by the tenant from the farm occupied by him to the farm of the appellee, and were there purchased by him, without notice of the distress, we-are of opinion that the landlord’s lien cannot be enforced to the prejudice of the rights of the appellee as a bona fide purchaser. On the other hand if the cattle were not sold to the appellee, but merely left in his possession by the tenant, they still remained subject to the lien acquired by the-landlord under the distress. The main question, therefore, in this case, is, whether the appellee was a bona fide purchaser without notice. [560] There was no error however, in the refusal of the defendant’s first and second prayers. Replevin may be maintained in this State, not only for the unlawful taking but also for the unlawful detention of property. And although the cattle may have been taken from the possession of the appellee by a constable of Carroll County, or by other persons and delivered to the possession of the appellant, yet, if the latter refused to deliver them to one who was entitled to the immediate right of possession, an action of replevin would lie. Nor was there any error in refusing his third prayer. It is not necessary in replevin that the plaintiff should prove an absolute title to the property. As against a trespasser or wrong-doer, the right of possession is sufficient. The mutual assent of the seller and buyer is necessary of course to the validity of every sale. In this case, if the appellee agreed to give a certain stipulated sum and the tenant agreed to take it, or if the latter agreed to sell the cattle to the former in consideration of an existing indebtedness, the cattle being in the possession of the appellee, the title passed and no other delivery was necessary. The defendant’s fourth, fifth, seventh and eighth prayers, were, therefore, properly refused. On the other hand, if the appellee only made a conditional offer which was not in fact accepted, then of course the sale was incomplete, and the defendant’s sixth prayer ought to have been granted. Nor do we see any objection to the ninth prayer. If the appellee had notice of the landlord’s distress, or assisted the tenant in removing the property from the farm occupied by him, for the purpose of preventing the landlord from executing his distress, then he was not entitled to recover. As against the landlord he had neither title or the right of possession. [561] The tenth, twelfth and fifteenth prayers were properly refused for the reasons assigned in considering the third prayer. The fact that the appellee assented or assisted in driving the cattle from his premises, under a mistake in regard to his rights would not prevent him from afterwards asserting his claim to the cattle, and there was no error in refusing the eleventh prayer. The thirteenth prayer was erroneous, because it did not submit to the jury to find whether the appellee was a bona fide purchaser without notice. With this qualification it presents correctly the law governing and controlling the case. The fourteenth prayer was of course properly rejected. There was no error in excluding the evidence offered in the first bill of exceptions. The fact that other persons appraised the cattle at $249, for which the appellee paid $300, did not lead in any manner to prove that the sale was fraudulent. It is argued in the brief of the appellee, that the appellant’s thirteenth prayer was properly refused, because the defendant had no right to set up the distress of the landlord either by way of plea or in evidence. Now in an action of replevin in this State, the plaintiff must show that he is entitled to the right of possession. The defendant may plead non cepit, property in himself, or in a stranger, inconsistent though those pleas may seem. Edelin vs. Thompson, 2 H. & G., 31. The plaintiff's replication to these pleas must set up property in himself, and on this the issue is joined. Cullum vs. Bevans, 6 H. & J., 469; Warfield vs. Walter, 11 G. & J., 80. And where the defendant pleads property in a third person, the burden of proof is upon the plaintiff to show a superior title to that third person. McKenzie vs. B. & O. R. R. Co., 28 Md., 161. Upon these pleas of property the defendant if he succeeds, is entitled to a return of the property with [562] out making avowry or cognizance, because they destroy the plaintiff’s title. Crosse vs. Bilson, 6 Modern, 102 ; Butcher vs. Porter, 1 Salkeld, 94; Alexander’s British Statutes, 99. (Decided 18th June, 1879.) The defendant having set up title in Benjamin I. Worthington by his third plea, it was competent for him to sustain the plea, or in fact to meet the issue presented by the replication of the plaintiff, by proving how and in what manner Worthington acquired title to the property.. It follows from what we have said, that the Court erred in granting the plaintiff s seventh and eleventh prayers. Judgment reversed, and new trial awarded.