98 Tenn. 72 | Tenn. | 1896
This is an action of detinue to recover the possession of an abstract of title to real estate. Defendant, Cherry, relies upon an outstanding title to the abstract in a third party, and he denies that at the date of the commencement of this action he was in actual or constructive possession of the abstract. The facts disclosed in the record are that one Mrs. Myers was the owner of two lots, and applied to the plaintiff, the Guaranty Loan & Investment Company, of the city of Washington, for a loan of money. Mrs. Myers furnished the company with an abstract of her title to both of said lots,
The Circuit Judge, who tried the case without the assistance of a jury, pronounced judgment in favor of the defendant. There was no request made of the trial Judge for specific written findings, and the judgment was general. Hence, if there is any theory of the case supported by material evidence upon which the judgment may be rested, it will not be disturbed. Brooks v. Paper Co., 10 Pick., 705.
The defendant insists that the title ¿to the abstract is in Mrs. Myers, the proof showing that she procured it to be made, and paid for it. It will be observed that Mrs. Myers is not a party to this proceeding and is not asserting title to the abstract, directly or indirectly. It is well settled, however, that, in an action of replevin, the defendant may show that the right of property and possession is
We cannot admit, however, that this record shows that the title and right to possession of the abstract was in Mrs. Myers. . When this lady made application to the Guaranty Savings, Loan & Investment Company for a loan upon the security of this real estate, it was agreed that she should furnish to the company an abstract for the purpose of examining the title. Mrs. Myers accordingly procured the abstract and paid for it as already stated. But. when the loan was negotiated and the deed of trust to the company executed, she permitted resident counsel to forward said abstract to the home office of the company in Washington. The abstract was permitted to remain in the possession of the company, without objection or claim of ownership on the part of Mrs. Myers, until after the foreclosure of the deed of trust, and she had again acquired title to the vacant lot. Desiring then to make a further disposition of said lot, and for the' purpose of avoiding the cost of another abstract, Mrs. Myers requested her attorney to get the original abstract from the plaintiff company. It was finally delivered to her attorney upon the faith of his promise to become responsible for it and return it after he had finished the examination of the title. If Mrs. Myers were before the Court, asserting title to the abstract,
The title and right of possession to the abstract being in the guaranty company, the next question presented by the record is whether it can maintain a suit against this defendant. The record discloses that at the commencement of this action, the defendant, Cherry, was not in possession of the abstract, either as an individual or as secretary of the Equitable Building & Loan Association. Cherry was not notified that the abstract was claimed by the guaranty company until after the sale of the lot and the delivery of the abstract to Haynie. It appears, moreover, ■ that when the exchange was effected and the deeds passed, the resident attorney and the plaintiff, Robb, were both present at the Register’s office, and no claim was made or notice given that the abstract belonged to the guaranty company. The abstract was handed to Cherry at the Register’s office, and taken away by him along with the deed. He testifies that it was a part of the contract between Mrs. Myers and the Equitable
The warrant in the present case commands the defendant ‘ ‘ to answer the complaint of J. M. Robb, for use, etc., in a plea of detinue for detaining one abstract of title, etc., and which defendant declines and refuses to surrender to plaintiff, and defendant has lonlawfully converted said property to his own use without the authority of plaintiff, which tort is hereby waived, to plaintiff’s damage.”
The tortious conversion of the property having been expressly waived in the face of the warrant, it is difficult to perceive how the action can be
In the sixth volume of the American & English Encjmlopedia of Pleading and Practice, p. 652, note, it is said, viz.: “To entitle the plaintiff to recover in an action of detinue, he must show that the defendant, either at time of demand made, or, if no demand was made, at the time the writ was sued out, had the actual possession of or the controlling-power over the property, unless, having the possession at some time anterior to such demand or suit, he has wrongfully, or to elude the plaintiff, parted with it, or unless he holds it \mder a contract of
The proof in this record shows that defendant obtained possession of the abstract in a lawful manner, and was guilty of no tortious conversion or wrongful detention of the property from the plaintiff, but, that prior to the commencement of this action, and before demand made, without knowledge of plaintiff’s claim, and in good faith, he passed the abstract to Haynie, the subvendee, and thereby lost possession and all right of control over it. It is well settled, upon such a state of facts, the defendant is not liable in detinue' for the value of the property. If, however, the action could' be maintained, plaintiff has introduced no proof whatever to show the value of the property.
The judgment of the Circuit Court is affirmed.