Schulenberg v. Campbell

Napton, J., delivered the opinion of the court. This was an action of detinue to recover some saw logs cut and carried from a tract of land claimed by the plaintiff. A verdict and judgment were obtained for the logs or their value. The instructions asked upon the trial, and refused by the court, asserted several propositions, which we hold, with the court below, not to be the law of the case. These points were chiefly, 1. That a demand was necessary before suit; 2. That the plaintiff in detinue must have an absolute right to the property sued for, and 8. That the action cannot be maintained where the goods were originally acquired by a trespass. The last proposition seems at one time to have been regarded as law in England, but more recent decisions maintain what we think the better opinion, that the trespass may be waived, and detinue or trover brought. It is well settled that no demand is necessary. The second proposition above stated is not strictly correct, for a special property will suffice to maintain the action, but as there was no evidence of anything other than general ownership in this case, the instruction might have been given. Its refusal is not deemed important. The principal objections taken in the circuit court and relied on here, relate to the details of the plaintiffs’ title. The probate at the will of Daniel Clark was objected to, and so was the power of attorney from Relf & Chew to Hammond. Clark’s will was made in 1811 and probated in Louisiana in 1813. At that time, and indeed from 1807 up to 1845, the law of this State permitted a will executed in any other State or territory, according to the forms prescribed by the laws of such State or territory, to pass lands in this State. In 1845 this law was changed, and lands lying in this State could not be derived except the [494] will was executed with the formalities required by our law, and protected by our courts. We are not of opinion, that it was the design of the legislature in 1845 to make this law retrospective in its operation. The language of the act does not require such a construction, nor would general principles or public policy favor it, even were it certain that sucb a purpose would be a legitimate one. It is obviously unnecessary to examine the objections made to the power of attorney, since its validity can be no wise necessary to the plaintiff’s title. The title was reinvested in Relf & Chew by the foreclosure of the mortgage, and it is not material whether Hammond’s sale ever put the title out of them or not. It may well be questioned, whether such details of the plaintiff’s title as were offered in this case are effectual to a recovery in an action of detinue. We have no authority upon the point. The action of de-tinue has so seldom been resorted to in England, that but very few cases are to be found in the books in which this form of action was used. In this country it has been abolished by statute in some of the States, and in others its use is confined almost exclusively to cases, where slaves or some chattels possessing a peculiar value, are sought to be recovered. If we are to be governed by legal analogies, I am unable to see the propriety of putting the plaintiff to full proof of title, in a case where there is no one to dispute it, and a mere trespasser is defending. Even in ejectment, a prior possession under claim of title is held sufficient, in the absence of all paper title on either side. Is the claimant and occupant of land obliged to hunt up his title papers, whenever a depredation is committed, before he seek redress? The plaintiff here had by a regular partition, made under the authority of a court, been assigned her portion of the land, as a derivative claimant under the will of D. Clark. No adverse title was set up or said to have any existence. She had possession by her tenants, when the timber was cut and carried off. Is not this a sufficient f rima facie title against a trespasser? Judgment affirmed.