Melton v. M'Donald

• Decision Date: 31 May 1828
• Citation: 2 Mo. 45
• Parties: MELTON v. M'DONALD, ADM'R.
• Court: Missouri Supreme Court

2 Mo. 45

MELTON

v.M'DONALD, ADM'R.

Supreme Court of Missouri.

May Term, 1828.

ERROR TO ST. LOUIS CIRCUIT COURT.

TOMPKINS, J.

M'Donald, as administrator of Daniel Polk, alias Pogue, sued Melton in an action of detinue for some slaves, and had judgment, to reverse which Melton sued out his writ of error. The facts on which the verdict was found, on which this judgment was rendered, are the same as those which were the basis of the action of M'Donald v. Walton,^(a) docided at this term, except that the acts of the General Assembly of the State of Kentucky were not given in evidence. In this case it is not then material to notice more than two of the errors assigned which are: First. That the verdict and judgment are for the aggregate value of the slaves. Second. That the evidence does not support the declaration. The declaration contains two counts. In the queritur the plaintiff calls himself administrator, &c., of Polk. In the first count he states his cause of action thus: For that whereas, said Polk, &c., in his life-time, on 1st January, 1803, at, &c., was lawfully possessed, as of his own right and property, of certain goods and chattels, &c., and being possessed thereof, the said Polk afterwards, to-wit: on, &c., at, &c., casually lost the said, &c., and the same, &c., on the 10th June, 1826, came into the possession of said Melton by finding. The second count states the cause of action as the first did, except that the birth of some children, descended from two of the slaves, is alleged to have taken place between the 1st of January, 1803, and the 10th June, 1826, and both counts then deny that the slaves were restored to the intestate in his life-time, or to the administrator since the death of the intestate.

To maintain this action for goods. the plaintiff must have the right of property in himself, and the immediate right of possession. The gist of the action is the wrongful detainer, and not the original taking.^(b) See 1 Chitty, 121-2, and authorities there cited. In the statement of his cause of action it must be shown that the goods, &c., were the plaintiff's, either by words “of the plaintiff,” or that he was possessed of the goods, &c., or the omission will be fatal, even after verdict, the objection being the want of title, and not a title defectively stated: 1 Chitty, 367, and cases there cited. But when the right of action accrues to the intestate in his life-time, and the administrator wishes to sue in the right of the intestate, then he must show property in such intestate, and a wrongful detainer in his life-time; then averring the death of the intestate and his own appointment as administrator, he shows his right to a recovery. The plaintiff has chosen here to show property in the intestate.

The proof is, that in 1807 or 8, Polk died possessed of these slaves, except those born since his death; that in a few weeks after his death, the widow removed from Kentucky, where he died, to St. Louis county, and married one Chapman, from which...