| Ill. | Feb 20, 1901
delivered the opinion of the court:
Upon the former hearing of this cause, reported as Pease v. Ditto, 185 Ill. 317" date_filed="1900-04-17" court="Ill." case_name="Pease v. Ditto">185 Ill. 317, we said (p. 321): “In this action chattel mortgages had been executed on the property in controversy, and such mortgages had been placed in the hands of the plaintiff by the mortgagees for the purpose of bringing the property to sale under the terms and conditions of the mortgages. He took possession of the property, and the same was levied upon and taken out of his possession by the appellant Pease, as sheriff. If his control and possession of the property were merely those of a servant or employee of the mortgagees, his possession of the property was that of those for whom he acted, and the right of action to recover that possession was in the mortgagees, unless he had a general or special interest in the property.”
Where principles of law have been announced by this court on a former appeal, those announcements cannot be questioned on a subsequent appeal in the same litigation. (Ogden v. Larrabee, 70 Ill. 510" date_filed="1873-09-15" court="Ill." case_name="Ogden v. Larrabee">70 Ill. 510; Newberry v. Blatchford, 106 id. 584; Washburn & Moen Manf. Co. v. Wire Fence Co. 119 id. 30; Cable v. Ellis, 120 id. 136; Tucker v. People, 122 id. 583). The question, therefore, to be determined upon this appeal is, whether the right to bring this action of replevin under the finding of facts, made by the Appellate Court in its second judgment, was in the mortgagees, holding the chattel mortgages, or in the appellee, Ditto, who was employed by the attorneys of the mortgagees to take possession of the mortgaged property, and advertise, and sell it. Embraced in these questions are the further questions, whether or not the control and possession of the property by the appellee, Ditto, wepe merely those of a servant or employee of the mortgagees, and whether or not the appellee Ditto, had a general or special interest in the property.
It is claimed on the part of the appellee that, if he had the naked possession of the property at the time it was taken away from him by the appellants, he was entitled to bring this action of replevin, upon the alleged ground that the appellants, defendants below, having, withdrawn their sixth plea, and having introduced in evidence no writ or other authority, under which they took the property from the appellee, Ditto, -were in fact trespassers and tortfeasors. The broad doctrine is announced by the appellee-that, where a person has possession of property, and his possession is disturbed by another person, who has no evidence of right to or interest in the property, the person, whose possession is thus disturbed, is entitled to maintain the action of replevin under the statute. Section 1 of the Replevin act of this State provides “that, whenever any goods or chattels shall have been wrongfully distrained, or otherwise wrongfully taken, or shall be wrongfully detained, an action of replevin may be brought for the recovery of such goods or chattels by the owner or person entitled to their possession in'any court of competent jurisdiction.” (3 Starr & Curt. Ann. Stat.—2d ed.—p. 3373).
In Fullerton v. Morse, 162 Ill. 43" date_filed="1896-06-11" court="Ill." case_name="Fullerton v. Morse">162 Ill. 43, it was held as follows: “The language of the statute, ‘or person entitled to their possession,’ is declaratory of the common law, and intended to distinguish from the absolute owner a person having a qualified or special interest, legal or equitable, in the property itself.” In order, therefore, to determine whether the appellee, Ditto, was entitled to possession of the mortgaged chattels in such sense as to justify him in bringing an action of replevin in his own name, it must be determined whether he had a qualified or special interest, legal or equitable, in the mortgaged property, it being conceded he was not the absolute owner thereof.
It is difficult to understand how, under the facts as found by the Appellate Court, the appellee, Ditto, could have had a qualified or special interest, legal or equitable, in the property. He was a mere servant or employee of the mortgagees. As was said in Fullerton v. Morse, supra, he was responsible to the mortgagees “only for the performance of his duty as agent, and interested only in the compensation for his services as such.” The parties, who were in possession of the property, were the mortgagees named in the mortgages, and the appellee, Ditto, was merely their servant for the purpose of holding the property, and selling it under their orders, or under the orders of their attorneys. Appellee’s employment was at most an employment at the mere pleasure of the attorneys of the mortgagees. He could have been discharged at any moment, and another person could have been employed in his place. In his work on Replevin, Cobbey (2d ed. sec. 150) says: “A servant, who has the goods of his master which he must surrender on demand, cannot sustain the action; it should be brought by the master.”
The terms and conditions of the mortgage are not set out in the findings of fact by the Appellate Court, and it nowhere appears that the mortgagees attempted to give appellee any lien or interest in the property, nor is it shown that they had any power under the mortgage to invest him with such a lien or interest. The persons, who in the books are said to have such a special property in goods as to justify them in maintaining trover or replevin therefor, are for the most part such persons as are entitled under the law to a lien upon the goods, such as carriers, factors, warehousemen, consignees, pawnees, trustees, agisters of cattle, etc. Special property in a strict sense has been said to consist in the lawful custody of the goods with right of detention against the genuine •or absolute owner. (Eisendrath v. Knauer, 64 Ill. 396" date_filed="1872-09-15" court="Ill." case_name="Eisendrath v. Knauer">64 Ill. 396). “A specific or particular lien can arise only (1) by an express contract; (2) by usage or custom of trade; (3) by implication of law; or (4) by statute.” (13 Am. & Eng. Ency. of Law,—1st ed.—p. 576). No lien existed here in favor of the appellee upon the mortgaged goods, either by express contract, or by usage or custom of trade, or by implication of law, or by statute. He certainly had no lien for his services or commissions in selling the goods, as he was not a general agent or factor of any kind. (Eisendrath v. Knauer, supra). Nor, under the finding of facts made by the Appellate Court, did he regard himself as entitled to any such lien, for, upon making the sale, he paid over to the attorneys the money realized from the sale without undertaking, or claiming the right to, retain any of such proceeds for his commissions. It does not appear that the payment, which was made to him, was made out of such proceeds. The mere fact, as stated in the findings of fact, that he looked to the mortgaged property for his fees, commissions and expenses did not give him a lien thereon, even though he intended to wait until after the sale was made before he asked for the payment of his commissions.
Counsel for appellants recite a number of cases, which are claimed to hold that mere naked possession of personal property will entitle the party having* such possession to bring an action of replevin, as against a person who takes the property from his possession without any right thereto or property therein. It will, however, be found, upon an examination of these cases, that they refer to a possession held under a claim of right by the party having the possession, and not a possession which is held by the mere servant or employee of the real owner. Wells, in his work on Replevin, (ed. of 1879, sec. 115), says: “The simple possession of chattels, without other title, is regarded a sufficient evidence of ownership to sustain an action against one who wrongfully usurps possession; but this must be possession by the plaintiff in his own right, and under a claim of right, not as servant of another.” The same author, (sec. 644), says: “A mere servant who has possession of goods by delivery from his master, which the master may at any time put an end to, has not such property or right of possession as will enable him to sustain this action.”
It is impossible for us to review all the cases, quoted upou this point in the argument of counsel, but several decided by this court may here be referred to. In Knisely v. Parker, 34 Ill. 481" date_filed="1864-04-15" court="Ill." case_name="Knisely v. Parker">34 Ill. 481, a plaintiff in an action of replevin was held to have the right to recover on his prior possession, but such prior possession was taken under and by virtue of a judgment and sale; and although the judgment and sale were void, yet there was claim of ownership thereunder by the plaintiff in his own right. In VanNamee v. Bradley, 69 Ill. 299" date_filed="1873-09-15" court="Ill." case_name="Van Namee v. Bradley">69 Ill. 299, a woman, who was the plaintiff in replevin, was held entitled to recover upon the strength of her prior possession of property through her agent, but the proof tended to show that she had purchased such property with her separate means, and claimed the same as her own, when it was seized by the sheriff as the property of her husband under an execution against him. So in Cummins v. Holmes, 109 Ill. 15, it was held that, where chattels were taken from one without legal authority, his prior possession was sufficient to warrant a recovery against the tort feasor, but it there appeared that the plaintiff in the action of replevin was a mortgagee in possession of the mortgaged property, and it was said that such plaintiff had the right of possession, as against the mortgagor and his creditors, whether the mortgage was valid or not, until the right was challenged in some mode known to the law. In that case, the plaintiff claimed to hold the possession as mortgagee under a mortgage, and not as the servant or agent of another person.
It is well settled that, in an action of replevin, a plaintiff must recover upon the strength of his own title, and, where his title is denied, the burden of proof is upon him to show a general or special property in the goods themselves. (20 Am. & Eng. Ency. of Law,—1st ed.-—p. 1054; Chandler v. Lincoln, 52 Ill. 74" date_filed="1869-09-15" court="Ill." case_name="Chandler v. Lincoln">52 Ill. 74; Reynolds v. McCormick, 62 id. 412). In the case at bar, the fourth and fifth pleas filed by the defendants below were pleas of property in the defendant and property in the Hoosier Manufacturing Company. The allegation of property in the defendant is mere inducement to the formal traverse of right of property in the plaintiff. The question, raised by a plea of property in the defendant, is not whether the property is in the defendant, but whether the right of property and the right to immediate possession are in the plaintiff. Under such a plea, the plaintiff must recover on the strength of his own title, and the burden of proof is upon him to establish his right. (Anderson v. Talcott, 1 Gilm. 365; Chandler v. Lincoln, supra; Constantine v. Foster, 57 Ill. 36" date_filed="1870-09-15" court="Ill." case_name="Constantine v. Foster">57 Ill. 36; Reynolds v. McCormick, supra). Here, .however, the appellee, Ditto, showed no title or right of property in himself, save so far as he was the servant or agent of the mortgagees for whom he was acting.
It has been held in a number pf cases that, where a sheriff levies upon personal property and delivers it to another person for safe keeping, such other person being called a receiptor because he executes a receipt for the property, the receiptor was not thereby constituted a bailee of the property, but a mere servant of the sheriff without any legal interest in it; and that such receiptor, having neither the general nor special property, cannot maintain replevin or trover. (Ludden v. Leavitt, 9 Mass. 104" date_filed="1812-05-15" court="Mass." case_name="Ludden v. Leaviti">9 Mass. 104; Commonwealth v. Morse, 14 id. 216; Dillenbach v. Jerome, 7 Cow. 293; Norton v. People, 8 id. 136; Mitchell v. Hinman, 8 Wend. 667" date_filed="1832-05-15" court="N.Y. Sup. Ct." case_name="Mitchell v. Hinman">8 Wend. 667; Harvey v. Lane, 12 id. 563; Knapp v. Miller, 6 Johns. 195" date_filed="1810-08-15" court="N.Y. Sup. Ct." case_name="Barker v. Miller">6 Johns. 195; McNorton v. Akers, 24 Iowa, 371). The position, here occupied by the appellee, Ditto, is in our opinion, neither more nor less than the position of the ordinary custodian or receiptor, to whom property is delivered for safe keeping.
A contrary doctrine to the one here announced would encourage a resort to devices for avoiding the statute of this State in regard to replevin. Section 4 of the Replevin act provides, that the person, bringing such action, shall file an affidavit that the property replevied by him has not been “held by virtue of any writ of replevin against the plaintiff.” (3 Starr & Cur. Ann. Stat.—2d ed. —p. 3376). This property may have been taken by the appellants under a writ of replevin running against the mortgagees for whom Ditto was acting, and if appellee’s position can be maintained, such mortgagees could re-replevy the property by resorting to the device of making their custodian a plaintiff. If the Hoosier Manufacturing Company had begun an action of replevin against such mortgagees and taken the property, the mortgagees themselves under the statute could not replevy the property back from the Hoosier Manufacturing Company. The mortgagees could not swear, in commencing their action of replevin, that the property replevined by them had not been held by virtue of any writ of replevin against themselves. But, if the mere custodian or servant of the mortgagees can commence an action of replevin which they themselves could not commence, then the requirement of the statute could be evaded by the use of the name of such servant or employee. In other words, the principals or real parties in interest could evade the statute by acting under the name of a mere servant, instead of acting in their own names. This would be a clear violation of the law.
For the reasons above stated, we are of the opinion that the Appellate Court incorrectly applied the law to the findings of facts made by it, and erred in reversing the judgment of the trial court and entering judgment in favor of appellee,- Ditto, the plaintiff in the trial court.
Accordingly the judgment of the Appellate Court is reversed, and the judgment of the superior court of Cook county is affirmed.
T . , Judgment reversed.