Shaddon v. Knott

• Decision Date: 31 December 1852
• Citation: 32 Tenn. 358
• Parties: SHADDON v. KNOTT.
• Court: Tennessee Supreme Court

32 Tenn. 358

SHADDON

v.KNOTT.

Supreme Court of Tennessee.

December Term, 1852.

This was an action of replevin in the circuit court of Maury county. At the September term, 1852, Martin, judge, presiding, there was judgment for the defendant; and the plaintiff appealed in error.

Payne, for plaintiff in error, cited Act 1846, ch. 65; 8 Humph. 609; 9 id. 741; 10 id. 378; 3 N. H. 183;16 Mass. 146;1 Dall. 139;6 Binn. 2.

M. S. Frierson, for defendant in error, argued: Suppose the sale from Halcomb to the plaintiff of the brown mare, was absolute and unconditional, and Halcomb, by agreement, was permitted to retain the possession, although we admit, as between the parties, a contract of sale is complete without the delivery, but, as to a second purchaser from the seller, who has no notice of the first sale, a delivery is necessary, for the reason that the first purchaser thereby enables the seller to practice a fraud upon the second buyer, and cannot take advantage of his own wrong by demanding the property sold to the second purchaser, who has innocently paid his money for, and attained possession of, the thing sold. 1 Domat, secs. 259-278; 5 Shepley, 162; 17 Serg, & R. 99; Pothier on Sales, sec. 320; 1 Bouv. Inst., sec. 952.

The action of replevin, in England, is founded on the statute of Westminster, 2; and in this state upon the express enactment of 1844, ch. 65, and is given for precisely the same causes for which it might have been maintained at common law. At common law it could only be maintained for two causes: First, for the “caption,” or tortious taking the goods and chattels of another; second, for the unlawful and illegal “detention” of the goods and chattels of another against “gage and pledge.” The act of 1846 also gives the action of replevin in two specified cases: First, for the “seizure,” or for wrongful taking the goods and chattels of another; second, for the illegal “detention” of the goods and chattels of a third person. Thus, by simply comparing our statute with the common law, we at once see that the action can only be maintained, under our statute, for the same causes for which it could have been maintained at common law, although the mode of procedure is entirely different. 2 Reev. E. L. 46, 47; Bla. Com. 145, 151; 10 Humph. 378.

1. Then, what is the legal signification of the term “caption,” at common law, and the word “seized,” in the act of 1846? It is manifest they mean the same thing; that is, that the original taking, or obtaining possession, of the goods and chattels of another was wrongful, was tortious; and such has been the uniform course of decisions, both in England and in this country. Meaney v. Head, 1 Mas. 319, 322; 1 Sch. & Lef. 320, 324; 2 Murphy, 357; 7 Johns. 140; 4 Bing. 299; 3 Steph. N. P. 2482 (note), 2484.

2. Then, what is the legal interpretation which has been placed upon the word ““detention,” when applied to the action of replevin? It means that character of holding or detaining the goods and chattels of another which will render the party liable as a trespasser ab initio; some positive act contrary to the authority or license conferred by law, and under which he took the goods and chattels; the taking being just, but the holding tortious and unjust. 5 Barn. & Cress. 485; 11 N. H. 363; 1 Smith's Ld. Cas. 162; 10 Johns. 253, 369;1 Mas. 319; 3 Bla. Com. 151.

3. That the term “detention,” in the act of 1846, was intended to apply to that character of holding and detaining goods and chattels which would render the defendant liable as a trespasser ab initio, is fully supported by the 10th section of the act of 1846, which requires the plaintiff to make oath that the goods and chattels which he proposes to replevy are not subject to ““seizure,” or “execution;” substituting in this section the word “execution,” for ““detention,” thereby showing that where the term “detainer” is used in the statute, the Legislature meant a “detention” under color of legal authority or license, the abuse of which would render the party liable as a trespasser from the beginning. For, unless the affidavit states that there was a “seizure” of goods which were not subject to “seizure,” or that goods were taken in “““execution” which were not liable to “execution,” no writ of replevin could issue; both of which causes imply a tortious or wrongful taking. 9 Conn. 140; 10 Id. 75.

4. Consequently, wherever the plaintiff voluntarily parts with the possession, or in cases of bailment, or where the defendant is in the rightful possession under a contract, and cannot be sued as a trespasser, the “detention” is not such as will sustain an action of replevin, although the holding or detention may be in violation of his contract, and for which the plaintiff could maintain an action of trover, or detainer. Meaney v. Head, 1 Mas. 319, 322; 3 Steph. N. P. 2830; 4 Bing. 299; 10 Humph. 378; 2 Chitty's Pl. 843; 4 Bouv. Inst., secs. 3537, 3559.

Caruthers, J., delivered the opinion of the court.

This action of replevin was brought for a brown mare, worth $360. The mare was sold by one Holcomb, to the plaintiff, but left with the vendor for the use of his family. Sometime after, Holcomb procured an auctioneer to sell the mare for him, and she was bought by Tate, who sold her to the defendant. It does not appear that the defendant had any knowledge of the purchase of the plaintiff.

The judge charged the jury, first, that a sale of this kind of property is good, even without delivery of possession, against a subsequent purchaser without notice; and, secondly, “that an action of replevin will not lie unless there was a trespass committed in the taking of the property, where the action is brought for the seizure; or, where brought for the detention, the detention must be wrongful, or tortious, and under such circumstances as will make the holder a trespasser from the beginning. If the jury shall find from the proof, that the defendant came to the possession by purchase from one claiming the title, and having the possession, and the same was...