64 W. Va. 67 | W. Va. | 1908
In an action of debt on a detinue bond, instituted by James H. Young and H. W. Ashley, against Samuel Edwards and A. W. Watrous and the United States Fidelity and Guaranty Company, the circuit court of Clay county, deeming the evidence insufficient to prove that the property seized by the sheriff, under the writ in the action of detinue, went into the hands of the plaintiffs in that action, or that the sheriff held it for them as their agent, under an express agreement that he should so hold it, directed a verdict for the defend
The declaration, as originally drawn, after averring the steps taken in the action of detinue, including the execution of the bond and the seizure of the property, about 75,000 feet of sawed lumber, of the value of $1,000.00, alleged “that the said sheriff retained possession of said sawed lumber and cross ties and kept the same until the 13th day of October, 1905.” A demurrer to it having been sustained, the portion just quoted was amended so as to read as follows: “That the said sheriff at the instance, request and by the consent of the said Edwards and Watrous and as the representative of said Edwards and Watrous, retained and withheld the possession of said sawed lumber and cross ties and kept the same until the ,13th day of October, 1905.” Erom the subsequent allegations of the declaration, as well as from the evidence, it appears that the action in which the bond was given and the property was seized, was dismissed on the said 13th day of October, 1905, and judgment for the defendants therein, the plaintiffs in this action, was rendered for the costs amounting to $97.30. The property was never removed from the premises on which it was at the time of the seizure, but the plaintiffs here were excluded from the possession, custody and control of it during the pendency off the action of detinue. There was no actual delivery thereof to the plaintiffs in that action, though they had given a bond and the property was seized on the 24th day of May, 1905, and the action was not dismissed until in October, 1905. No counter bond was given by the defendants and it is not pretended that they had either actual or constructive possession of the property at any time between the seizure and the release thereof. They charge constructive possession on the part of the obligors on two grounds: first, that the possession of the sheriff was the possession of the plaintiffs in the detinue action; and, second, that, at the instance and request of the plaintiffs, the sheriff placed one William Calli-son in charge of the property. As to whether Callison was the agent of the sheriff or of the plaintiffs, there is controversy. According to the testimony of the sheriff, no demand was made upon him for the possession of the property and
r~By reason of the modification of the common law principles governing the action of detinue, effected by our statute, extending to the plaintiff the right to have the officer to take the property into his possession, by giving a bond at the commencement of the action, or at any time before judgment the principles governing the common law remedy, known as the action of replevin, were engrafted upon the remedy of detinue. As far back as 1819, the action of replevin was narrowed down to a few cases. In 1849, it was abolished, 'with the intent that other remedies, previously existing and then adopted, should take its place. See Revisors Rep. Title 44, p. 735. By chapter 55 of the Acts of 18§6, it was provided that the plaintiff in the action of detinue, desiring to have immediate possession of the property, might have an order endorsed on the summons, directing the officer to take the property into his possession, at the commencement of the action, or issued at any time thereafter and before judgment, on filing an affidavit stating its kind, quantity and value and .his veritable belief in his right to recover the same, and a bond with good security in a penalty at least double the value of the property claimed, and conditioned in the manner prescribed by the act. The difference between this procedure and that peculiar to the common law action of replevin consists principally in the order of time in which, and the persons by whom, the acts are done. In replevin, the writ issued and the seizure was made before the description of the property and the value thereof was entered upon record and became a part thereof, and before security was given on the part of the plaintiff. After the seizure, the officer delivered the property to the plaintiff, taking from him security, not only for the return of it, in case his action
Two decisions of this Court are relied upon as having declared the law to be otherwise than as we have just stated. Bratt v. Marum, 24 W. Va. 652, and Altizer v. Buskirk, 44 W. Va. 256. In the first case, the declaration did not allege even the seizure of the property. It set forth the bond, the trial and judgment before the justice of the peace, in which it was ordered that the plaintiff “retain the possession of the said horse,” an appeal to the county court, trial there, and a verdict and judgment for the appellant. Judge Johnson, delivering the opinion of this Court, said it was fatally defective in that it did not allege, that by reason of the execution of the bond, the horse was delivered to the plaintiff in the action, and that, from anything that appeared in the declaration, he might have acquired possession in some other way, as by taking the horse up while running at largo, after having broken from the enclosure of the officer, and, further, that there was no allegation that the plaintiff has possession of the horse at all. It is manifest that the Court was not called upon to, and did not, determine, what is a sufficient allegation of possession in the plaintiff, for there was no allegation thereof, nor anything purporting to be. It could not have been determined, whether the possession of the officer was the possession of the plaintiff, for there was no' allegation that the officer ever seized or had the horse in his possession. It is true the Court said in the syllabus of the case that a declaration on such a bond, which does not allege that the plaintiff in the action of detinue had possession of the property after the bond was executed is fatally defective, but it did not indicate what facts alleged would be sufficient to charge the plaintiff with possession thereof. The proposition of law enunciated by the Court, as well as the application thereof to the declaration, is absolutely sound, and there is no occasion to find fault with it. The same legal proposition is declared in Altizer v. Buslvirk. Thedemurz-er to the declaration in that case was not predicated upon the lack of an averment of possession in the plaintiff, but upon an entirely different ground, lack of an averment that there was a verdict or judgment in the action of detinue. The declaration having been held good, the case of the plaintiff in the action
Want of title in the plaintiffs herein to the lumber, sued for in the action of detinue in which the bond was given, is relied upon as justifying the action of the court in directing a verdict; and, if they had no title, the position would be sustained by the principles declared in Altizer v. Buskirk. But we are of the opinion that they had title. The timber from which the lumber was manufactured belonged to them. Sometime in the year 1905, they entered into an agreement with Samuel Edwards and A. W. Watrous to cut, saw and deliver the same f. o. b. cars at certain prices, and $100.00 was paid them on account of the purchase money. Important stipulations of the contract are these: ‘ ‘This lumber is to be delivered inside of eight months. Party of the first part is to start cutting the lumber and start a saw mill in a few weeks. Party of the second part agrees to pay for all lumber in carload lots as soon as it is loaded on cars. ” Though several different classes of lumber are mentioned and prices stipulated for the different kinds, nothing is said about the time or place of inspection. At the date of the contract, all of the timber was in the woods uncut, and at the date of the institution of the action of detinue, no part of it had peen loaded on the cars, nor had the purchase money, other than the $100.00, been paid. In fact, practically all of the lumber was on the mill yard some miles from the railroad. After the dismissal of the action, it was all sold to other persons and never delivered to the defendants herein. It must be apparent from this statement that, at the time at which the prop
Whether the defendants herein had the right to demand and receive the specific property after it had been delivered to the railroad is immaterial for the purposes of this action.
Our conclusion is that the court erred in directing a verdict for the defendants. The judgment will be reversed, the verdict set aside and the case remanded for a new trial.
Reversed. Remanded.