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of the value of four dollars is proper, and will be well supported by the evidence, when the only evidence of their value is that they were worth four or five dollars a head.226

land. 231

$ 2164. When replevin lies. Replevin lies by the owner of chattels against one who has merely directed the sheriff to levy on them.227 Replevin lies wherever trespass would lie.228 This does not mean that the remedies are always concurrent, but that wherever trespass would lie, and the defendant was in possession of the goods, replevin would lie.229 Replevin for hay cut on public lands can not be maintained by a prior possessor against one who was in adverse possession, claiming a preemption right, entered when he cut the hay.230 The action for replevin would not lie for emblements cut and taken by a person who was at the time of the taking in possession of the

A safe in the possession of McC., belonging to W., F. & Co., for whom, as also for plaintiff, he was agent, contained six thousand dollars in coin. Of this sum four hundred dollars belonged to W., F. & Co., the balance to plaintiff. Defendant, as sheriff, under a writ against McC., seized one thousand eight hundred dollars of the money in the safe as his property, and put it in a bag. Plaintiff then claimed the money as his, McC. being present and not objecting. It was held that this amounted to a segregation of the one thousand eight hundred dollars from the mass of coin in the safe, so as to sustain replevin by plaintiff.232 Where one person is in possession of personal property, exercising dominion over it, and another takes and carries it away without his consent, the former may maintain an action against the latter to recover the possession of the property, although in fact it belongs to a third person, unless the latter can justify his taking of the property by showing such a privity existing between him and the owner as would entitle him to represent the owner's interest in it.233 Where tenants in common of chattels agree that one shall have exclusive possession of the chattels, the tenant so entitled may maintain replevin against his cotenant. 234 Where a husband, without his wife's authority, sells or incumbers her personal property, she may recover its value in an action of replevin.2

226 Black v. Black, 74 Cal. 520.
227 Knapp v. Smith, 27 N. Y. 277.

228 Pangburn v. Partridge, 7 Johns. 140; 5 Am. Dec. 250; Marshall v. Davis, 1 Wend. 109; 19 Am. Dec. 468.

229 Roberts v. Randel, 3 Sandf. 707; further qualified as meaning that it would lie where trespass might be brought. Thompson v. Button, 14 Johns. 84; Clark v. Skinner, 20 id. 465; 11 Am. Dec. 302.

230 Page v. Fowler, 28 Cal. 606; affirmed in Page v. Fowler, Oct. T., 1869.

231 Rich v. Baker, 3 Den. 79; De Mott v. Hagerman, 8 Cow. 220; 18 Am. Dec. 443; see Gossett v. Drydale, 48 Mo. App. 431.

232 Griffith v. Bogardus, 14 Cal. 410. Money is not the subject of an action of replevin, unless it is marked, or designated in some manner, so as to become specific as regards the power of identification, such as being in a bag or package. Hamilton v. Clark, 25 Mo. App. 428.

235

§ 2165. When action will not lie. If an officer, by his misconduct, induces a sale of property for less than it would otherwise have brought, the remedy must be by an action for damages for the loss resulting from his acts, and not an action to recover the property or its value. 236

2166. Wrongful detention. This action is based upon a wrongful detention of the property; and such wrongful detention must exist at the commencement of the suit.237 But facts must be shown, as the averments in a complaint of "wrongful and unlawful” may be stricken out as surplusage.238 It is held, however, not to be absolutely necessary to state in the complaint the facts which show that the detention is unlawful, and that they may be given in evidence on the trial.239 averment in the complaint that the defendant "unlawfully holds the property, is equivalent to an averment that it is “ unlawfully detained.”240

233 Lewis v. Birdsey, 19 Oreg. 164.

234 Morgan v. Hedges, 4 Col. 526; and see Fines v. Bolin, 36" Neb. 621; compare Robinson v. Dickey, 143 Ind. 205.

235 Ashby v. Greensdale, 30 Neb. 253. In an action by a married woman to recover the possession of personal property, it is not necessary for her to deraign her title to the property. Freeburger v. Caldwell, 5 Wash. St. 769.

236 Foster v. Coronel, Oct. T., 1867.

237 Savage v. Perkins, 11 How. Pr. 17; Gardner v. Brown (Nev.), 37 Pac. Rep. 240; see $ 2152, ante. In South Dakota, the action to recover personal property takes the place of, and is a substitute for, both the former actions of replevin and detinue, and the unlawful detention is the gist of the action. It is immaterial how the defendant acquired the possession, but he must have either the actual or constructive possession of the property at the time the action for its recovery is instituted. Willis v. De Witt, 3 S. Dak. 281; and see Yildas v. Crosby, 61 Mich. 413; McHugh v. Robinson, 71 Wis. 565; Howe v. Shaw, 56 Me. 291; Turpie v. Fagg, 124 Ind. 476; Ross v. Menefee, 125 Ind. 432.

238 Halleck v. Mixer, 16 Cal. 574.

$ 2167. Wrongful taking. Alleging that the defendant took the plaintiff's property, and unjustly detains the same, sufficiently imports a wrongful taking 241 The plaintiffs may declare generally, claiming the property as theirs, and give in evidence special facts to establish the fraud by which the defendant obtained possession of the goods. 242

$ 2167a. Complaint by assignee of insolvent. A complaint by the assignee of an insolvent debtor, which alleges that certain personal property belonged to the insolvent; that the same was wrongfully withheld from the schedule of assets; that the defendant wrongfully and without the consent of the plaintiff came into possession of and retained the same, claiming to be the owner thereof, and had no title to or right to the possession of said property, but that the same was the property of the insolvent, and that the plaintiff, as his assignee, was the owner and entitled to the possession of the same; and that a demand had been made of the property, but the defendant had refused to give possession of the same, states a cause of action which does not depend upon the ground of fraud, and is sufficient without any allegation of fraud, general or special.243

239 Everett v. Buchanan, 2 Dak. 249. Otherwise in New York, Barry v. Calder, 48 Hun, 449.

240 Gould v. O'Neal, 1 Ind. App. 144.

241 Childs v. Hart, 7 Barb. 370; compare Reynolds v. Lounsbury, 6 Hill, 534.

242 Benesch v. Waggner, 12 Col. 534; 13 Am. St. Rep. 254; Bliss v. Cattle, 32 Barb. 323; Nudd y. Thompson, 34 Cal. 39; and see McKinney v. First Nat. Bank, 36 Neb. 629, where a petition stating a good cause of action in replevin is set out in full; see, also, Daniels v. Cole, 21 Neb. 156. Under the Oregon statute (Civil Code, & 41), the action of replevin is local. A complaint in such action, which only alleges a wrongful taking within the county in which the action is brought, is bad on demurrer, but in the absence of such objection is sufficient to support evidence of the situs of the property at the time the action was commenced. Moorhouse v. Donaca, 14 Oreg. 430.

243 Cady v. Leonard, 81 Cal. 622; see Fitzgerald v. Neustadt, 91 id. 600.

CHAPTER II.

FOR REAL PROPERTY.

18..,

$ 2168. Ejectment, alleging title in fee simple.

Form No. 547.
[TITLE]
The plaintiff complains, and alleges:
I. That on the ..... day of

18.., he was seised in fee and possessed and entitled to the possession of that certain tract of land situated in the county of state of

described as follows: [description of property).

II. That while the plaintiff was so seised, the defendant afterwards, on the day of ...

and without right or title, entered into possession of the demanded premises, and ousted and ejected plaintiff therefrom, and now unlawfully withholds the possession thereof from the plaintiff, to his damage in the sum of

dollars. III. That the value of the rents, issues, and profits of said premises from the said

day of

18.., and while the plaintiff had been excluded therefrom by the defendant, is

dollars. · Wherefore the plaintiff prays judgment against the defendant:

1. For the recovery of the possession of the demanded premises, and for the sum of

dollars, damages for withholding the possession thereof. 2. For the sum of .

dollars, the value of the said rents, issues, and profits, and costs of suit.

$ 2169. Color of title. Color of title is that which in appearance is a title, but which in reality is no title. It is that which the law will consider prima facie a good title, but which, by reason of some defect, not appearing on its face, does not in fact amount to title. An absolute nullity, as a void deed or judgment, will not constitute a color of title.1

$ 2170. Conveyance pending suit. The conveyance of the demanded premises by the plaintiff in ejectment pending the suit, to a person not a party to the action, does not necessarily defeat the action.2

1 Bernal v. Gleim, 33 Cal. 668.

$ 2171. Damages. In Wisconsin, the damages in ejectment which the plaintiff is entitled to recover, include only the rents and profits, and not damages for injuries done to the premises.3 It is otherwise in California, where damages may be also recovered in the same action. Where damages for use and occupation prior to the commencement of the action are claimed, the plaintiff should state the title of the plaintiff as existing at some prior date, designating it, and as continuing up to the commencement of the action, and the entry of the defendant at some date subsequent to that of the alleged title as in this form.4 Where there is no other proof of ouster than a denial of plaintiff's title in the answer, the plaintiff can only recover damages from the date of the commencement of the suit:5 is error to award damages where none are alleged in the complaint.

It

$ 2172. Constructive possession. A party who enters into the actual possession of a portion of a tract of land, claiming the whole under a deed in which the entire tract is described by metes and bounds, is not limited in his possession to his actual inclosure or possession, but acquires constructive possession of the entire tract, if it is not in the adverse possession of any other person at the time of his entry; and such person, in an action of ejectment, will prevail against one who enters subsequently upon the uninclosed part, as a mere intruder.? But there must be some show of good faith, which does not appear in taking a deed from a stranger having no title, and asserting no claim.8 Where a party enters upon land with no higher evidence of title than that which the law presumes from his possession, and distinctly marks out the extent and bound

2 Barstow v. Newman, 34 Cal. 90.
3 Pacquette v. Pickness, 19 Wis. 219.
4 Payne v. Treadwell, 16 Cal. 220.
6 Miller v. Myers, 46 Cal. 535.

6 McKinlay v. Tuttle, 42 Cal. 570. Where the complaint in ejectment contains no allegation of special damage, the damages recoverable can not include the value of the use of the premises by the defendant. Arnold v. Woodward, 14 Col. 164.

7 Walsh v. Hill, 38 Cal. 481.

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