Christenson v. Hanna

Mr. Presiding Justice Baker delivered the opinion of the court. While it is true that a writ of replevin will lie for the recovery of a deed where the object is to recover possession of the specific paper and not to test the right to the land which it in terms conveys, the writ will not lie for the unlawful taking or wrongful detention of a title deed where there is a dispute about its delivery and the controversy involves the determination of the title to the land described in the deed. Hooker v. Latham, 118 N. C. 179; Campbell v. Brooks, 93 Miss. 853; Flannigan v. Goggins, 71 Wis. 28; Cobbe on Replevin, sec. 79. The real controversy here is as to title. The real issue in the case is whether the deed was delivered, and the court should have entered a judgment of non-suit. Flannigan v. Goggins, supra. But the judgment in the case is a judgment that the defendants recover from the plaintiff the possession of the property replevied and that a writ of retorno habendo issue, etc., and this is a judgment on the merits for the defendants. Defendants contend, and we think properly, that the court was without jurisdiction to render a judgment for the plaintiff, but if it was without jurisdiction to render a judgment for the plaintiff it was also without jurisdiction to render a judgment on the merits against the plaintiff in favor of the defendants. The judgment will be reversed and a judgment of nonsuit entered here. Judgment reversed with judgment of nonsuit here cmd order for a writ of retorno habendo.