Philips v. Harriss
| Decision Date | 31 December 1829 |
| Citation | 26 Ky. 122 |
| Parties | Philips and Walker v. Harriss. |
| Court | Kentucky Court of Appeals |
Pleading. Replevin. Trespass. Officer. Bailor and Bailee. Possession. Trial of Right of Property. Jury. Damages. Judgment.
APPEAL FROM THE ANDERSON CIRCUIT; HENRY DAVIDGE.
Marshall and Richardson, for appellants.
Crittenden and Triplett, for appellees.
The appellants, as trustees for Mrs. Richardson and her children instituted an action of replevin against the appellee. Four negroes were the subject of the controversy. Harriss relied upon the following facts, which were set out in two pleas, as his defence, to-wit: that two executions were placed in his hands, he being coroner of Anderson county, against the estate of John C. Richardson; that in virtue of said executions, and while they were in full force, he levied on the slaves, in the declaration mentioned, they being in the possession of the said Richardson; that he advertised the slaves for sale, according to law, permitting them to remain with said Richardson, and took his bond, with surety, to have them forth coming on the day of sale; that he gave the plaintiffs, who claimed the property, ten days previous notice, of the time and place of sale; that in pursuance of the act of assembly, in such cases made and provided, he summoned a jury, to try the right of said slaves; that the jury was empannelled and sworn according to law; that the claimants, to-wit: the plaintiffs, did not succeed in establishing the property to be theirs, the jury not agreeing.
To the facts thus set forth in the defendant's pleas, the plaintiffs, in substance replied that they were the owners in fee, of the slaves in contest, the same having been conveyed to them in trust, for the use of Mrs. Richardson, wife of said John C. Richardson, by Samuel Arbuckle, who was seised at the date of his conveyance, and that, for the purpose of effectuating the terms of the trust, they delivered the slaves, in the declaration mentioned, to said Richardson and wife, to be held by them, as bailees of the plaintiffs; and that said slaves, at the time of the levy of said executions, were held and possessed, by said Richardson and wife, as the bailees of the plaintiffs, and not in the proper right of said Richardson, as his own property. To the replications of the plaintiffs, the defendant demurred. The court gave judgment on the demurrer, for the defendant, to reverse which, the plaintiffs have appealed.
It is a principle in pleading, that whatever is well set forth in a plea and not controverted in the replication, is admitted to be true. Thus, all the material facts stated in the pleas, in this case are admitted; and the plaintiffs attempt to avoid them by asserting title in themselves, to the slaves. Two questions are made upon the record:
Whatever is well set forth in plea, and not denied in replication, is admitted to be true.
1st. Can the owner of personal property, or a chattel, taken in execution, and who is not a defendant in the execution, maintain the action of replevin for the goods, in the actual possession of the defendant, in the execution, at the time of the levy made on them?
And 2d. Can the officer, levying the execution, exonerate himself from a recovery in an action of replevin, by showing that he empannelled a jury, to try the right of property; and that the jury failed to decide, that the property belonged to the claimant?
In regard to the first question, we are of opinion, that the defendant in the execution can not successfully maintain an action of replevin, against the officer making the levy. The institution of the action, by the defendant in the execution, would be a contempt of the authority of the court, rendering the judgment, upon which, the execution issued, and ought to be punished as such. See I. Chitty, 160, and the authorities there cited.
If a defendant in the execution, after judgment had been legally entered against him upon a full and fair trial, were tolerated in bringing his action of replevin, and by it, to replevy the goods, taken in execution there might be no end to the delays, which the defendant might thus create. Justice and the end of the law, would be effectually subdued; for, although, the defendant in the execution, and plaintiff in the action of replevin, would fail upon the trial, and judgment would be rendered in favor of the officer, for the restoration of the goods; yet the action might be again and again renewed, and delays, without end, effected. To prevent such abuses, and such contempts of the authority of courts, to prevent the monstrous absurdity of rendering the remedies, afforded by law, with a view to redress wrongs, the means of defeating the very end to be accomplished; the defendant in an execution, who should thus prevent the action of replevin, might, and ought to be severely punished for contempt.
Institution of action of replevin, by def't. in execution, is contempt, which ought to be severely punished.
Although, such should be the rule, in respect to the defendant in the execution, the reasons for it, are not equally strong, in relation to those, whose property may be seised under executions, against others. Indeed, we are of opinion, that the reason entirely fails, where an execution issues against A, and the officer ??evies on the property of B. It is a tresspass, on the part of the officer, to seise property not owned by the defendant in the execution; and we perceive no reason founded in good policy, which should prev??rt the real owner from maintaining his action of replevin, although some adjudged cases, ??ay be found, which lean against it. Chitty, 160, lays it down in general terms, " that no replevin lies for goods, taken by the sheriff by virtue of the execution, and if any person should pretend to take out a replevin, the court would commit him for a contempt, & c." But no goods can with propriety, be said to be taken by virtue of the execution, unless the goods belong to the defendant in the execution; for an execution against A, is no authority and constitutes no justification for taking the goods of B. Where the goods are taken by virtue of the execution, that is when the goods of the defendant in the execution, are taken, we admit that it would be a contempt for any person, to pretend to take out a replevin. It would be more aggravated, for the friend of the defendant in the execution, to do it, than for the defendant to do it himself. These doctrines do not embrace the case of the goods, of a stranger to the execution and judgment, who, when they are taken in good faith, resorts to the action of replevin, to obtain redress. The case of Thompson vs. Button, XIV. Johnson's Rep. 84; and the case of Kerley vs. Hume, III. Monroe, 182, tolerates the opinion, that a stranger to the execution, may maintain his action of replevin. These cases, also prove, that the action of replevin, is not confined to injuries, resulting from illegal distresses for rent, damage, feasant, and the like. That it is a remedy, co-extensive with that of trespass, de bonis asportatis, is established in New York, VII. Johnson, 140-143; and XIV. Johnson, 17. See also Chitty, 159. We see no reason for restricting the remedy, by action of replevin, to narrower bounds in this state. The doctrines laid down by a majority of the court, in the case of Baldwin vs. Alexander. VII. Monroe, 424, and which are well fortified by authority prove that an action of replevin, is an appropriate remedy, in behalf of all strangers, to an execution, whose property may be seised, by an officer, under color of the process.
It is a trespass in officer, to seize property, not owned by defendant in execution, and real owner may maintain replev??n against him therefor.
Action of replevin, is not confined to injuries resulting from illegal distresses for rent, damage feasant and the like.
Replevin is remedy co-extensive with trespass, de bonis asportatis.
Replevin, appropriate remedy in behalf of all strangers to execution, whose property may be seized by officer under color of process.
Applying the foregoing views to the facts of this case, we find nothing in them, which can lead us to decide, that the appellants were not entitled to maintain their action, merely, because the slaves in controversy, were seised by Harriss, to satisfy the execution against Richardson.
We are also of opinion that the taking of the slaves from the immediate possession of Richardson, can not prevent the appellants from maintaining this action, if it be true as they allege that Richardson was no more than their bailee. The possession of the bailee, is the possession of the bailor. The general property of a chattel, commonly unites with it, the possession in law, although in fact, the thing may be actually possessed by another; thus, the horse of the farmer is in his possession, in law, although, in fact, his overseer or apprentice, may be riding or working the horse, in the performance of business, exclusively his. The general property is sufficient to maintain the action as a general rule, Chitty, 158. It is not necessary, (as contended by the appellee's counsel) to maintain the action of replevin, that the taking should be from the plaintiff in action. The taking may be from a feme sole, and after marriage, the husband alone, may maintain the action, Chitty, 159. It is questionable, whether a mere naked bailment, for safe keeping, gives the bailee such a right, as to enable him to maintain the action, in case the goods are taken from him. I. Johnson, 380.
Possession of bailee is possession of bailor.
General property is sufficient to maintain replevin, as a general rule. Therefore, to maintain replevin, not necessary that taking be from plaintiff ??...
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