26 Ala. 650 | Ala. | 1855
—We understand the charge requested by the appellant to assert the legal proposition, that if a defendant in detinue is proved to have possession of property belonging to the plaintiff before the commencement of the suit, a recovery can be had, if the property is in existence, although the defendant may without fault have parted with the possession and control before demand made, or suit commenced.
But a very different case is presented, when one comes into possession by a lawful act, and in ignorance of the rights of the true owner, as by a purchase from one in possession, who has ostensibly the right to sell. Hls possession is not wrongful or unjust in the souse in which those terms are applied to the finder or borrower who refuses to deliver to the real owner upon demand ; and if he, without notice of title in another,’ parts with the control of the property before demand or suit, although he may be liable for the value in another form of action, it would ho unjust to hold him to deliver the specific goods. In cases of bailment, by the civil and French law, if the heir or administrator of a deceased bailee- sell the tiling in ignorance of the bailment, he is liable but for the price, and only when he has received it (Digest, lib. 16, tit, 3, o, 1;
What we have said is supported by the case of Fenner v. Walker, 20 Ala. 192, in which it is said, with regard to this action, “ that to enable the plaintiffs to recover, they must show that the defendant, either at the time of the demand made, or, in the event that there was no demand, at the time the writ was sued out, had the actual possession, or the controlling power over the property; unless, having- the possession anterior to such demand or suit, he has wrongfully, or to elude the plaintiff’s action, parted with it, or unless he holds it under a contract of bailment which he violates by failing to deliver it.”—See, also, Caldwell v. Ford, Riley 277; Kershaw v. Boykin, 1 Brevard 801; Charles v. Elliott, 4 Dev. & Bat. 468. So, in Harris v. Hillman, at this term, we held, that a purchaser at sheriff’s sale having subsequently hired out the slave bought, without notice that the plaintiff had any right, or intended to call in question the claim of the defendant ; and being thus divested of the control and possession of the slave at the commencement of the suit, no previous demand having been made, — the action was not maintainable on the prior possession. The question presented upon this record is fully covered by the last case cited.
Judgment affirmed.