111 Ga. 760 | Ga. | 1900
Lead Opinion
T. I. Mitchell, describing himself as “agent,” brought an action against the Georgia and Alabama Railway, to recover possession of a certain described lot of lumber alleged to be in the possession of the defendant. The petition averred that the plaintiff was the owner of the property sued for, and that he had demanded the same of the defendant, who had refused to deliver it to him or to pay him the profits thereof. At the trial the plaintiff testified that he was in possession of the property described as agent for his wife, and that he had no •other interest therein; that he had the lumber loaded on one of the cars of the defendant, intending to sell it to one Gibbs if he paid cash for it as he agreed; that Gibbs did not pay for the lumber, and the defendant, before delivery to it, and without authority of plaintiff, shipped the lumber to Gibbs; that plaintiff made a demand on the defendant for the lumber, but it refused to deliver the same to him. At the conclusion of the evidence the court granted a nonsuit on theground that the evidence showed the title to the property sued for was in the plaintiff's wife, and that he had no such possession as entitled him to recover. The plaintiff then offered an amendment inserting in the petition the name of his wife as usee. The court refused to allow the amendment, and the plaintiff sued out a bill of exceptions complaining of this refusal and of the granting of a nonsuit.
It is -well settled that; to support any one of the three common-law actions, the plaintiff must have had either a general or special property in the goods seized. “To support replevin,
As a general rule, as is laid down in the decisions from this court, cited above, a'plaintiff in order to recover in trover must show title in himself. Possession is presumptive evidence of title, and becomes conclusive evidence against a mere wrongdoer; he not being allowed to set up the “jus tertii.” Dicey, Parties, mar. p. 356, citing Jeffries v. Great Western R. R. Co., 25 L. J. 109, 110, Q. B., in which the judgment was rendered by Lord Campbell, who, in his opinion, uses'this language: “The law is, that if a person is peaceably and quietly in possession of a chattel as his own property, a person who takes it from him having no good title is a wrong-doer, and such person can not defend himself by showing that the chattel is not the property of the plaintiff, but the property of a third person.” Whatever language of Lord Campbell there is in the opinion in that case which seems to support the proposition, that an agent who is in possession can maintain an action in his own name, must be qualified by the language above quoted, in which the learned Chief Justice states that the case with which he is dealing is one where the plaintiff was in possession of the chattel “as his own property.” An examination of the authorities has satisfied us that the possession referred to is a possession in the possessor’s own right, or under a claim of property, either general or special. Even in the case of a thief, who according to many authorities can maintain trover, or a finder, or a bailee, the possession which the plaintiff claims is for himself and in his own right. It can not be a possession
In the case of Philips v. Robinson, 4 Bing. 422, the declaration alleged that the plaintiff delivered to the defendant certain deeds belonging to the plaintiff. The defendant pleaded that the plaintiff was not lawfully possessed of the deeds as of
The rule that a person wrongfully in possession of goods taken from another can not set up title in a third person, or dispute the plaintiff’s title, is perfectly consistent with the principle above announced. As stated above, a general or a special property in the personalty is essential to maintain trover, but as against a wrong-doer possession will be held to be conclusive evidence of such a property. But certainty a defendant, though a wrong-doer, will be permitted to dispute the possession itself ; and he does this successfully by showing that the bare physical possession upon which the plaintiff relies was not in his own right but in that of another. As the plaintiff’s right of recovery rested, in the present case, upon bare possession, and as the evidence introduced in his behalf shows that such possession was in the right of his wife and not in his own right and that he had no interest whatever in the property, the presumption of ownership arising from possession was rebutted, and, under the authorities above referred to, he was not entitled to recover. It is said, however, that the Civil Code, § 3038, changes the rule recognized by the decisions and authorities above referred to. That section is as follows: “An agent having possession, actual or constructive, of the property of his principal, has a right of action for any interference with
In Mechanics’ Bank v. Heard, 37 Ga. 401, 412, Judge Harris uses this language: “It should be kept in mind that the codifiers were commissioned to embody the principles of the com
• In Rome Grocery Co. v. Greenwich Ins. Co., 110 Ga. 618, Mr. Justice Lewis, in dealing with a section which, according to its literal terms, changed the existing law, says: “The object of the codifiers in compiling the first code was to embody, not only the statute law, but the common law of force in this State. As there was no effort to codify any statute upon that subject by the codifiers, we think it clearly proper, in determining the meaning of this section, to ascertain what was the general law of force in this country at the time of the adoption of the code.” The ruling in that case followed what was the law existing at the time of the adoption of the code, and not what the terms of the section, literally construed, wmuld have required. The rule on the subject under investigation in the present case being well settled when the code was adopted, and there being no sufficient reason suggested why such rule should not have been allowed to remain unchanged, and it not being “clear” that there was air intent to change the law on the subject, the section of t'he Civil Code now under consideration should be construed as a mere codification of the existing law; and, therefore, the word “agent” as used therein should be held to mean an agent who has a special property or interest in the chattel. Without such an interest, his possession is the actual possession of his principal, as was held in Hillyer v. Brogden, 67 Ga. 24. The -word “agent” appearing after the plaintiff’s name in the petition is merely “descriptio personas” and is to be treated as surplusage; and hence the action is to be regarded as one brought in the name of the plaintiff as the person entitled to recover in his own right. Civil Code, §2998; Owsley v. Woolhopter, 14 Ga. 124; McDuffie v. Irvine, 91 Ga. 748; Atlanta Brewing Co.
Judgment affirmed.
Dissenting Opinion
dissenting. It is inferable from the testimony in this case that, prior to the conversion of the property in dispute by the defendant, the transactions the husband had with the railway company were in his individual name. It is true he stated that the real title to the property was in his wife; that he was manager of his wife’s business, and the property was actually in his peaceable and lawful possession. I think it quite evident that the nonsuit was granted in the present case upon the ground that the evidence showed the title to the property was not in the plaintiff but his wife. The entire argumeutof counsel for defendant in error, in endeavoring to uphold' the judgment of the court below granting the nonsuit, is based purely upon thisidea. While the plaintiff testified the lum
Our Civil Code, § 3886, clearly adopts that common-law rulé in the following language: “Mere possession of a chattel, if without title, or wrongfully, will give a right of action for' any interference therewith, except against the true owner or the person -wrongfully deprived of possession.” In the case of Harpes v. Harpes, 62 Ga. 394, it is decided: “One from whose hands property of an estate has been wrongfully taken, may bring trover for its recovery against the tortious holder, although there has been no administration.” Chief Justice Warner, delivering the opinion in that case, says: “The mere possession of a chattel, if without title, or wrongfully, will give a right of action for any interference therewith, except as against the true owner, or the person wrongfully deprived of possession.” Iii that case the suit was by a widow of the deceased, to recover possession of a certain described horse. No administration had been granted upon the estate, and it was clear that the plaintiff in that case had no title whatever in the property. It is said in the opinion: “ If the plaintiff had sued for' the horse as a part of the estate of her deceased husband, then a grant of administration would have been necessary to have entitled her to recover; but she declared against the defendant as a wrong-doer, upon her own possession of the property sued for: The dismissal of the plaintiff’s action was error.” This doctrine is recognized in 2 Greenleaf on Evidence, § 637, in his •chapter on trover. In discussing the right of one having'á
But it is contended that, the evidence in this case showing that the plaintiff was not the owner of this property, he was not, in contemplation of law, in possession thereof in his own-right, and that his possession -was, therefore, not his own, but really that of his principal. I do not think the word “possession ” in Civil Code, § 3886, will bear any such construction. The term “mere possession” must have some significance, and-I think it necessarily means the party having the actual, manual custody of the property at the time his actual possession thereof is interfered with. It seems from the ingenipus argument of Mr. Justice Cobb in his opinion in this case that he has reached the conclusion that, in order to maintain an action of trover, the possession of the plaintiff, which has been interfered with, must have been coupled with some interest in the property sued for. But that is entirely inconsistent with the language of this section ; for it is therein plainly stated that even if the party, though in possession, is without title, or is in possession wrongfully, he can maintain an action for any interference therewith, except as against the true owner or the person.
In Sanford Mfg. Co. v. Wiggins, 14 N. H. 441, 40 Am. Dec. 198, it was decided that replevin can not be maintained unless the plaintiff has, at the time of the taking, either a general or special property in the goods. But that case did not involve any principle whatever touching the right of recovery on actual possession alone against a wrong-doer. That was a general principle in an action of replevin. On p. 199 of that case it will appear that the defendant was a deputy-sheriff, and he set up title in the property in one Hayden, and that the same was seized by defendant as deputy-sheriff by virtue of an attachment against Hayden. The same general principle is declared in 7 Hill, 126, cited by Mr. Justice Cobb. It does not appear from the facts therein that it has any reference whatever to the questions involved in the case at bar. The same general principle is announced in Beckwith v. Philleo, 15 Wis. 223, likewise cited ; but it will appear from the facts in that case on p. 229 that the defendants, instead of taking possession of tl e property involved, to wit, lumber, from the plaintiff, were rightfully in possession of the premises at the time of bringing the suit, and that the cutting of the timber by them, instead of being a wrongful act, was perfectly legitimate under the contract they made by virtue of which they acquired possession of the premises. He also cites 1 Chitty, PI. *137, to the effect that the plaintiff must have a general or special property in the goods at the time the action is commenced, and he also quotes from p. 167 of this work, to the effect that, in. order to
I fail to find that any of the authorities cited by Mr. Justice Cobb sustain his theory of what the common law is, that possession of an agent of his principal’s chattels will not enable him to maintain an action against a wrong-doer who has unlawfully deprived him of such possession, because his possession is in law possession of the principal. As a general rule an agent can not maintain an action in trover for the recovery of his principal’s property; but that rule does not apply when he is in possession of the principal’s property, and has been deprived thereof by the wrongful act of a person who has no interest whatever in that property. To say that Civil Code, § 3038, refers to an agent not only who has possession, actual or constructive, of the property of his principal, but refers to one who has an interest in the property, would be giving it a construction which was evidently never contemplated by the codifiers. If the agent’s right of action be based upon the fact that he has an interest in the property, then he neces- , sarily occupies some other relation than that of mere agent. If that is the only thing that gives him a right to sue, then his possession -is not that of an agent, but of an owner, and he had the right to protect his interest in the property against a wrong-doer, independently either of section 3038 or 3886 of the Civil Code. ' Chitty, the authority relied upon by Mr. Justice • Cobb, recognizes but one exception which even appears to exist, and that is where the possession is that of a mere servant. I know of no authority that recognizes the possession of an agent as an exception. But suppose it did, and at common law an agent did not have a right of action of this sort, then . manifestly, under our Civil Code, that principle of the common law has been changed. Suppose the word “ servant” had
It is true that the main purpose of the codifiers was to embody in the code of laws of this State, not only the statutes, but the common law in force, and also the decisions of this court, and that-in case of a want of absolute clearness as to what a seer tion might mean, or in case of ambiguity, if it relates to a principle of the common law, a determination of what the common law on the subject is is entirely proper, and often of great aid in arriving at the true intent of the codifiers, and of the action of the legislaturedn adopting their work. But when we find' in the code a provision as clear and unmistakable in its meaning-as is embraced in section 3038, the invariable rule of this court has been to treat it as law, although it may never have been law before the adoption of the code. Now. that section says, “an agent having possession, actual or constructive." Of what?' Of the property of his principal. It necessarily implies, so far as the absolute legal title is concerned, that the principal alonéis the holder thereof; and yet that section gives the agent in possession a right of action for any interference with that possession by third persons. What possession? Manifestly and unquestionably, the possession he holds for his principal. If the agent has an interest in the property himself, he would have a right of action, not by virtue of his possession as agent of his principal, but by virtue of his possession in an entirely different capacity. The effect, then, of the construction of the-majority of the court, as I conceive it, is to change the clear and unmistakable meaning of the language employed in the code, and to add to its words a thought that simply amounts to its absolute repeal. For the above reasons I feel constrained to differ from the views of the majority of my brethren, and think that the court below erred in granting a nonsuit.