Bueckhaltee v. Mitchell

• Decision Date: 20 July 1887
• Citation: 3 S.E. 225,27 S.C. 240
• Parties: bueckhaltee v. mitchell.
• Court: South Carolina Supreme Court

3 S.E. 225

27 S.C. 240

bueckhaltee

v.mitchell.

Supreme Court of South Carolina.

July 20, 1887.

1. Replevin—Demand—Bona Fide Purchaser.

In an action to recover a chattel, the court charged that if defendant came into possession wrongfully, then no demand was necessary; but if he had honestly acquired possession, without notice of plaintiff's claim, then a demand would be necessary, even though the defendant's vendor may have wrongfully acquired his possession. Held, no error.

2. Same—Character op Possession—Question for Jury.

In such an action, the character of the defendant's possession, whether wrongful or innocent, is a question of fact for the jury.

S. Same—Pleadings and Proof—General Denial.

Where a previous demand is essential to the maintenance of an action to recover a chattel, the question whether such a demand was made may be raised under a general denial.

4. Same—Demand—Question for Jury.

In such case, the question whether the demand was made is for the jury to determine.

Appeal from the court of common pleas, Barnwell county; Witheespoon, Judge.

McIvek, J. This case was submitted on the record filed here, consisting solely of the "case" and grounds of appeal, without any points or authorities, or argument, either oral or written, on either side. The action was brought to recover possession of a horse, alleged to be the property of the plaintiff, unlawfully withheld from his possession by the defendant, and damages for such detention. The defense was a general denial. The plaintiff claimed to have obtained the horse from one Samp. Sellers, shortly before his death in 1876, by an alleged gift made by said Sellers while on his death-bed, and that he retained possession until the latter part of 1882, when under protest he surrendered possession to one Wall, who had married a niece of Miss Nancy Sellers, who also set up some claim to the horse, and that Wall traded the horse to the defendant. The circumstances under which the plaintiff was induced to surrender the possession to Wall do not very clearly appear from the testimony; but it would seem that there was some dispute as to the right to the horse between the wife of Wall and the plaintiff, —she claiming that the horse belonged to her aunt, Miss Nancy Sellers, from whom she obtained the animal, and that the services of a trial justice were, in some way not explained, brought into requisition, who either directed or advised the surrender of the horse to Wall. The defendant under his trade with Wall retained possession of the horse for several years before this action was brought, without any notice or knowledge of the claim of the plaintiff, as he alleged, and without any demand for his delivery before the commencement of this action; the plaintiff, however, undertaking to show that there was such demand.

The circuit judge, in his charge, which appears to be fully set forth in the "case, " instructed the jury that they must first inquire whether the plaintiff had made out his title to the horse; and, if so, then, whether the defendant had acquired the possession of the horse wrongfully, or innocently, without any notice or knowledge of the plaintiff's claim; for, if he had come into possession wrongfully, then no demand was necessary; but if, on the other hand, he had honestly acquired possession from Wall, without notice of plaintiff's claim, then a demand would be necessary, even though Wall may have wrongfully acquired his possession. The jury found for the defendant and the plaintiff appeals upon the following grounds: "(1) Because his honor held, in this case, demand from the plaintiff was necessary before plaintiff could recover the horse in question. (2) Because his honor charged the jury that if they believed, from a clear preponderance of the evidence, that there was no de-mand upon the defendant for the property in dispute, then their verdict must be for the defendant....