Young v. Edwards.
| Decision Date | 10 March 1908 |
| Citation | 64 W.Va. 67 |
| Court | West Virginia Supreme Court |
| Parties | Young v. Edwards. |
Though a declaration on a detinue bond must allege that the plaintiff in the action of detinue had possession of the property after the bond was executed, no particular form of allegation of the fact is essential, and it suffices to show that the property was seized by the officer and retained by him for more than three days after the seizure. (pp. 70. 71.)
If, after the lapse of the period of three days allowed the defendant in such action in which to regain possession of the property by giving the counter, or re-delivery, bond, prescribed by the statute the property remains in the hands of the officer, he holds it by the sufferance or permission, and as bailee or agent, of the plaintiff; and, in order to recover on the bond, it is not necessary to allege or prove that the latter had it in his personal possession or that the officer held it for him under a special or express contract of agency. (p. 72.)
When a parly to an action has the power to command an officer of the court and compel obedience to his orders, the latter is, for many purposes, the agent of the former. (pp. 72, 73.)
As by statutory provisions, the action of detinue in this state has been so broadened and enlarged as to include many of the principles of the law of replevin, it is proper to observe the analogy between detinue, as so modified, and replevin, in construing the statutes by which this change has been wrought. (p. 71.)
Under a contract by which the owners of the timber on a certain tract of land, some miles from a railroad, agree to manufacture the same into lumber and deliver the lumber on cars at the railroad at certain prices and receive a small part of the purchase money at the time of the signing of the agreement, the title to the lumber does not pass from the seller to the purchaser until the same has been loaded on the cars. (p. 74.)
In an action on a detinue bond, the element of title to the property is to be determined as of the date of the seizure, or wrongful witholdirig of the possession thereof, under the writ. (pp. 74, 75.)
Error to Circuit Court, Clay County.
Action by J. II. Young and H. W. Ashley against Samuel Edwards and others. Judgment for defendants, and plaintiffs bring error.
Reversed. Remanded.
H. B. Davenport, for plaintiffs in error.
Geo, E. Price, for defendant in error.
poffenbarger, president:
In an action of debt on a detinue bond, instituted by James H. Young and H. W. Ashley, against Samuel Edwards and A. W. Watrous and the United States Fidelity and Guaranty Company, the circuit court of Clay county, deeming the evidence insufficient to prove that the property seized by the sheriff, under the writ in the action of detinue, went into the hands of the plaintiffs in that action, or that the sheriff held it for them as their agent, under an express agreement that he should so hold it, directed a verdict for the defend- ants, pursuant to which judgment was rendered for them, and of this judgment the plaintiffs complain on their writ of
error thereto.
The declaration, as originally drawn, after averring the steps taken in the action of detinue, including the execution of the bond and the seizure of the property, about 75, 000 feet of sawed lumber, of the value of $1,000.00, alleged ''that the said sheriff retained possession of said sawed lumber and cross ties and kept the same until the 13th day of October, 1905." A demurrer to it having been sustained, the' portion just quoted was amended so as to read as follows: "That the said sheriff at the instance, request and by the consent of the said Edwards and Watrous and as the representative of said Edwards and Watrous, retained and withheld the possession of said sawed lumber and cross ties and kept the same until the 13th day of October, 1905." From the subsequent allegations of the declaration, as well as from the evidence, it appears that the action in which the bond was given and the property was seized, was dismissed on the said 13th day of October, 1905, and judgment for the defendants therein, the plaintiffs in this action, was rendered for the costs amounting to $97.30. The property was never removed from the premises on which it was at the time of the seizure, but the plaintiffs here were excluded from the possession, custody and control of it during the pendency of the action of detinue. There was no actual delivery thereof to the plaintiffs in that action, though they had given a bond and the property was seized on the 24th day of May, 1905, and the action was not dismissed until in October, 1905. No counter bond was given by the defendants and it is not pretended that they had either actual or constructive possession of the property at any time between the seizure and the release thereof. They charge constructive possession on the part of the obligors on two grounds: first, that the possession of the sheriff was the possession of the plaintiffs in the detinue action; and, second, that, at the instance and request of the plaintiffs, the sheriff placed one William Callison in charge of the property. As to whether Callison was the agent of the sheriff or of the plaintiffs, there is controversy. According to the testimony of the sheriff, no demand was made upon him for the possession of the property and he neither delivered it to the plaintiffs nor refused to do so. In the order by which the action was dismissed, there is a recital to the effect that the property sued for had been taken by the plaintiffs. It appears that, while the property was so held under process, it was seriously damaged by high water and some of it washed away. Expenses of the litigation, loss of time and increased cost of marketing the lumber, owing to destruction of the road over which it had to be hauled, caused by high water while the possession of the lumber was withheld, are set up as additional elements of damage.
By reason of the modification of the common law principles governing the action of detinue, effected by our statute, extending to the plaintiff the right to have the officer to take the property into his possession, by giving a bond at the commencement of the action, or at any time before judgment the principles governing the common law remedy, known as the action of replevin, were engrafted upon the remedy of detinue. As far back as 1819, the action of replevin was narrowed down to a few cases. In 1849, it was abolished, with the intent that other remedies, previously existing and then adopted, should take its place. See Revisors Rep. Title 44, p. 735. By chapter 55 of the Acts of 1866, it was provided that the plaintiff in the action of detinue, desiring to have immediate possession of the property, might have an order endorsed on the summons, directing the officer to take the property into his possession, at the commencement of the action, or issued at any time thereafter and before judgment, on filing an affidavit stating its kind, quantity and value and his veritable belief in his right to recover the same, and a bond with good security in a penalty at least double the value of the property claimed, and conditioned in the manner prescribed by the act. The difference between this procedure and that peculiar to the common law action of replevin consists principally in the order of time in which, and the persons by whom, the acts are done. In replevin, the writ issued and the seizure was made before the description of the property and the value thereof was entered upon record and became a part thereof, and before security was given on the part of the plaintiff. After the seizure, the officer delivered the property to the plaintiff, taking from him security, not only for the return of it, in case his action should fail, but also for the prosecution of the action, which amounted to an undertaking as to the justice of his cause, and. obliged him to pay such costs and damages as might result to the defendant. By the statute of Westminister II, c. 2, section 3 (13 Edw. I.) the sheriff was required to take pledges for the prosecution of the action and also for a return of the property replevied if a return should be awarded. By the statute of 11 George II, c. 19. section 23, the sheriff was required to take a bond with sureties, in double the value of the property to be replevied, conditioned for the prosecution of the action without delay, and for the return of the property replevied in case a return was awarded. 24 Am. &Eng, Ency. Law 529. The description and the value of the property and the bond for due prosecution of the action and return of the property, in case of failure to make good the claim of title, were all shown by the return of the officer, endorsed upon or annexed to, the writ. Our statute requires a description of the property and its value as well as the bond conditioned for the payment of costs and damages and the forthcoming of the property to answer the judgment of the court, to be put into the record before the order of seizure is issued and before the seizure is made. In view of this substantial analogy between our statutory action of detinue and the common law action of replevin, it is apparent that the principles underlying the latter remedy have been engrafted upon the former. In the common law action of detinue, the property in controversy remained in the possession of the defendant, pending the determination of the right thereto, and judgment was rendered against him for the property, if it could be had, and, if not, for the value thereof. This statutory...
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