21 Mo. 115 | Mo. | 1855
delivered the opinion of the court.
This judgment must be reversed, and the cause remanded. The question is not without difficulty, and the result to which we have come has only been arrived at after a good deal of consideration. The propriety, however, of allowing a suit in replevin to be continued in the name of the administrator of a deceased defendant, considered in reference to the rights of either party, is so manifestly proper, in every point of view, and so free from every practical objection, that we felt it to be our duty to allow it, if it could be brought within the legislative provisions, in relation to the continuing of suits abated by the death of parties.
The action of replevin, confined, originally, to a tortious taking, has been greatly extended by our own legislation, until
At tbe common law, tbe death of either party abated tbe suit, and all causes of action founded upon wrongs to person or property were^extinguished. Tbe administrator representing tbe assets, rather than tbe person of bis intestate, gave rise to tbe maxim that personal actions die with tbe person, which included within it all actions founded on wrongs, and in that form, but not actions ex contractu. This, however, even in early days, was considered quite too narrow an exception to tbe maxim, and, therefore, by tbe statute of 4 Edward HI, it was enacted that, “in times past, executors bad not bad actions for a trespass done to their testators, as of tbe goods and chattels of said testators, carried away in their lifetime, it was provided that executors, in such cases, should have an action against tbe trespassers in like manner as their testators should have bad if they were living.” And this act was extended by tbe courts far beyond its words, and, by construction, made to embrace all injuries done to tbe personal estate of tbe intestate, lessening it in value, (1 William’s Ex’rs, 670,) and, accordingly, executors and administrators afterwards maintained trover and replevin for¡a conversion or taking, done in tbe lifetime of their testators or intestates. (1 Broom’s Maxims, 404.) It, however, only gave the remedy to tbe administrator of the injured party against tbe wrong doer himself, and gave no remedy after tbe wrongdoer’s death against bis administrator, and fell, in other particulars, far short of an enlightened system of law.
The legislature provide, generally, that all causes of actions, except for wrongs to the person or his reputation, shall survive against the administrator of the wrongdoer, and then, in relation to the continuance of suits abated by death, provide, in the same general manner, that a suit commenced against the intestate may be continued against his administrator, it it might have been originally instituted against him, and the argument is, that this particular form of action could not have been originally brought, and so cannot be continued against an administrator. The answer to this is, the reason why the courts will not allow it to be brought fails, where the question is as to its continuance, after having been lawfully commenced in the lifetime of the intestate. The legislature have not said that an action of replevin shall not be brought against an administrator, as such; but the courts, by an equitable construction of the statute, from the necessity of the case, in order to avoid subjecting the assets to liability for the wrong of the administrator, have, it is said, and must of necessity hold, that neither detinue nor replevin can be allowed as original suits against administrators in respect to their own wrongful deten
Whether replevin can be brought against an administrator, upon an unlawful taking or detention by his intestate, for property still continuing unlawfully in the administrator’s possession, is not the question here, and we express no opinion about it; but admitting, for the present purpose, that it cannot, we yet think the action does not abate after it has been commenced, by the death of the defendant, but may be continued to a final judgment, in the name of his administrators. The ground taken in the Tennessee case, (Jones v. Littlefield, 3 Yerger, 133,) is not inconsistent with this view of the subject. It is there laid down that “ a suit in detinue cannot be supported against administrators, as such, upon the detainer of their intestate or upon their own detainer — not in the former case, for it is a wrong or tort of their intestate, for which the assets are not liable, nor they responsible, as administrators holding them, and entrusted with their appropriation and distribution ; nor, in the latter case, for the detainer is their own act, for which they are answerable in their own private capacity.” But here, by our statute, the original cause of action does survive. The original taking or detention is a wrong for which the assets are made expressly liable, and, in this proceeding, the damages to be recovered are confined to those occasioned by the original wrong.
Neither does this decision conflict with the case of McDermott v. Doyle, (17 Mo. Rep. 366,) where the question was as to the continuance of an action of detinue against the administrator of a deceased defendant, when the damages to be recovered for the detention may come down to the time of the verdict, and so embrace damages for which the administrator alone was personally liable; and the decision proceeds upon that ground. In Mellen v. Baldwin, (4 Mass. 480,) the ap
We remark, in conclusion, that in replevin, tbe parties are, reciprocally, plaintiff and defendant; that tbe suit must result, if tbe parties live, in a judgment of recovery for one or tbe other, and when it results in favor of tbe defendant, be recovers not only tbe compensation provided for bim in tbe double damages given by tbe statute, but is secured in tbe payment of these damages and tbe return of tbe property, by a judgment against both plaintiff and bis sureties ; but tbe effect of allowing tbe suit to abate by tbe defendant’s death, is to deprive his estate of these benefits, and leave tbe property replevied in tbe bands of tbe plaintiff, without any security for its return, or compensation for tbe wrong done, other than single damages, if it turn out that tbe plaintiff bad no title to tbe property.
Let the judgment be reversed, and the cause remanded.