Webb v. Taylor

• Decision Date: 31 January 1879
• Citation: 80 N.C. 305
• Parties: JAMES WEBB v. L. L. TAYLOR and HENRY HAYSTY.
• Court: North Carolina Supreme Court

80 N.C. 305

JAMES WEBB

v.L. L. TAYLOR and HENRY HAYSTY.

Supreme Court of North Carolina.

January Term, 1879.

CLAIM AND DELIVERY tried at Spring Term, 1878, of NORTHAMPTON Superior court, before Seymour, J.

The opinion contains the facts. Upon overruling the demurrer the defendant appealed.

Mr. W. C. Bowen, for plaintiff .

Mr. R. B. Peebles, for defendant .

SMITH, C. J.

This action is brought under C. C. P., Title IX, ch. 2, §§ 176 to 187, to recover possession of a mule.

The complaint alleges the taking of the mule from the plaintiff by the defendant, Taylor, his subsequent selling to the defendant, Haysty, and the possession of the latter. The defendant, Taylor, demurs to the complaint, for that, it does not show possession in him, and his co-defendant answers.

On the hearing of the demurrer it was overruled and Taylor appeals.

We think there is error in the ruling of the court, and that upon the pleadings unamended the demurrer ought to have been sustained.

The gist of the action is the wrongful withholding of the plaintiff's property, and the remedy sought, its restoration to the owner with damages for the detention. It resembles and is substantially a substitute under the new, for the forms of detinue and replevin in use under the old system of practice, and affords the same measure of relief. Possession must be averred and shown to be in the defendant, or that he retains such control over the property if in the hands of his bailee or agent, that it can be surrendered to the plaintiff if the court shall so adjudge. The authorities cited in the argument for the appellant clearly establish this proposition-- Jones v. Green, 4 Dev. & Bat., 354; Charles v. Elliott, Ibid, 468; Foscue v. Eubank, 10 Ire., 424.

In Slade v. Washburn, 2 Ire., 414, it was held that a joint action of detinue would not lie against two persons who took certain slaves from the plaintiff at one and the same time, one defendant being in possession of a part of the slaves, and the other defendant being in possession of the other slaves; though an action of trespass could be maintained against both.

The same principle is applied to the action prescribed in the Code in Haughton v. Newberry, 69 N. C., 456. In that case the plaintiff sued to recover a boat which the defendant had sold to another person before the action was commenced, and it was decided that as the boat was not in the possession nor under the control of the defendant, the plaintiff could not recover in this form of...