Haughton v. Newberry

• Decision Date: 30 June 1873
• Citation: 69 N.C. 456
• Parties: JOHN P. HAUGHTON v. J. P. NEWBERRY.
• Court: North Carolina Supreme Court

69 N.C. 456

JOHN P. HAUGHTON

v.J. P. NEWBERRY.

Supreme Court of North Carolina.

June Term, 1873.

An action for the recovery of the possession of personal property, (in the nature of detinue under our old system,) will not lie against one who was not in possession of the property at the time the action was commenced.

Nor can a plaintiff in such action, under a general prayer for “other relief,” recover the judgment warranted by the facts proven. For although the names and technical forms of actions are abolished by the Constitution, yet in the very nature of things, there must be distinctions in respect to the remedies applicable to different cases.

( Lea v. Pearce, 68 N. C. Rep. 78, cited and approved.)

CIVIL ACTION, tried before Watts, J., at the Spring Term, 1873, of the Superior Court of CHOWAN county.

The facts as appears of record are: In 1863 the defendant took possession of a boat, which was claimed by the plaintiff; and during that year he, the defendant, came to the plaintiff and offered to purchase the boat, stating at the time, it was in his possession. Plaintiff refused to sell.

Plaintiff was absent from the State until the Fall of 1868. In 1870, ascertaining where the boat was, he demanded its possession of defendant, who informed him that he had since purchased the boat from the executrix of T. L. Skinner, deceased, and would not surrender it unless repaid the purchase money. Plaintiff afterwards saw and identified the same boat (his property) in the possession of one Mariner, to whom the defendant had sold it.

In December, 1871, this action was commenced.

His Honor upon calling the case at Spring Term, 1873, having intimated an opinion that the plaintiff's right to recover was barred by the statute of limitations, plaintiff excepted.

Defendant asked the Court to charge that this is an action of trover, and inasmuch as there was no proof that the boat was in possession of the defendant at the time of the demand by the plaintiff since the war, the plaintiff could not recover. His Honor so held, and the plaintiff excepting, submitted to a judgment of non-suit, and appealed.

A. M. Moore, for appellant .

J. A. Moore and Gilliam & Pruden, contra .

PEARSON, C. J.

It is alleged by the complaint that the defendant was in possession of the boat at the commencement of the action, and judgment is demanded for the recovery of the possession of the boat, and damages for its detention, as in the action of detinue under the old system.

On the trial the fact turned out to be that the defendant was not in possession of the boat at the commencement of the action, but had sold it and passed the possession to one Mariner. Upon this state of facts, his Honor intimated an opinion that the plaintiff could not recover, and the plaintiff submitted to a non-suit, and appealed.

We do not concur with his Honor, in either of the particular positions he assumed at the instance of the defendant's counsel. The action set out in the complaint is certainly not an action of “trover,” and had it been an action of trover the plaintiff would have been entitled to recover the value of the boat by way of damages for wrongful conversion; but we do concur in his general conclusion, that as the case then stood the plaintiff could not recover, and an affirmance of the judgment may furnish an illustration of the idea, that “two negatives sometimes amount to an affirmative.”

There was a fatal variance between the allegation and the proof. In face of the fact, that the defendant did not have the possession at the time of the commencement of the action, as a matter of course the plaintiff was not entitled to the judgment demanded by the complaint, to-wit: To recover the possession of the boat, for under that judgment the writ of execution would command the sheriff to deliver the boat to the plaintiff, and Mariner, who was a purchaser, upon the “ lis pendens,” would be deprived of his possession by a judgment in an action to which he was not a party; so that, as the pleading then stood, his Honor was obliged to hold that the plaintiff could not recover; upon this intimation the plaintiffs counsel should have admitted that the action was misconceived, because of his mistake as to the fact that the defendant was not (as he had supposed) in possession of the boat at the time of the commencement of the action, and that instead of demanding judgment for the recovery of the possession of the boat, he ought to have demanded judgment for the value of the boat, by way of damages, as in action of trover, and thereupon asked leave to amend the complaint so as to conform it to the proof...