Martin v. Watson

8 Wis. 315 | Wis. | 1859

By the Court,

Whiton, C. J.

The principal error complained of by the plaintiff in error, was in ruling out the testimony offered by the defendant at the trial. The testimony consisted of the records of the two judgments recovered by J. C. Fairchild against Simeon Dean, by a sale from whom the plaintiff claimed the property. This testimony was rejected by the judge before whom the case was tried for the reason that the defendant had not in his plea or notice alleged that Fairchild, the plaintiff, was a creditor of Dean. As the plaintiff in this suit, Watson, claimed the property by virtue of a sale or assignment from Dean, and as in the opinion of the judge, the assignment was sufficient on its face to convey the property to the plaintiff, although it might be void as against the creditors of Dean, the judge rejected the evidence offered for the reason above stated.

This makes it necessary to examine the notice which the defendant filed with his plea to justify the taking of the property. The plea was the general issue; appended to it was a notice of special matter of defence filed in pursuance of the Revised Statutes. (Rev. Stat, Chap. 119, §24). That part of the notice which is material is as follows: “And the said defendant, as by the statute in such case provided now here gives notice to the said plaintiff, that on the trial of this cause the defendant will insist and prove that the property in said writ of replevin specified and each and every part thereof, at the time when the detention of said property is supposed to be, was not in the said plaintiff, but in this defendant as sheriff of Sauk county, Wisconsin. The notice then goes on to state that the defendant had levied upon it by virtue of two executions issued by the circuit court of Dane county in favor of Jairas C. Fairchild, against the goods, &c., of one Simeon Dean, &c., &c. We think this was a notice that the defendant would prove at the trial that the title to the property was in the defendant and not in the plaintiff. This being the case, there can be no doubt that all the testimony which the defendant might offer to show title in himself, should have been received, if it tended to establish that fact.

The notice had, by our statute, the same effect as a plea of title in the defendant with a traverse of the plaintiff’s title. And we suppose that in such a case there can be no doubt that every fact which goes to show that the defendant had such a title as would defeat the action is admissible in evidence.

There can be no doubt that a sheriff who makes a valid levy upon personal property, acquires thereby special property in the thing levied upon. He can maintain trespass, replevin, and all other actions in respect to it which depend upon the right of possession. He has a title to it which he can rely ■upon in all these actions and he is no more obliged to set out in his pleadings the mode in which he acquired title, than he would be if he had acquired the title in any other way. In actions of replevin where both parties claim title to the property which is the subject of controversy, the question is, which has the prevailing title — that is, — which has the title which confers upon its owner the right of possession. This question frequently arises between bailor and bailee; between the general owner and carrier, or warehouseman, and such is the nature of the action that the party which has the right of possession most prevail. In this case, as we have seen, the defendant in effect set up a title in himself, and traversed the title of the plaintiff. He should therefore be permitted to prove, if he could, any fact which tended to show that he had a title which entitled him to the possesion. If the property belonged to Dean, and was liable to be levied upon by the executions issued upon the judgments which Fairchild had recovered against him, and the defendant had, as sheriff, in fact, made a valid levy, he had acquired such a title as would have prevailed in the suit. He should have been permitted therefore, to show as one step in his proof, that Fair-child had in fact recovered the judgments. This was necessary in order to make out the defendant’s title.

The judge therefore committed an error in ruling out the testimony offered. There must therefore be a new trial.

Judgment reversed and a new trial ordered.