Spivey v. Morris , 18 Ala. 254 ( 1850 )

CHILTON, J.

The question in this case is, whether a recovery in an action of trover by the plaintiff against one party, but without execution upon, or satisfaction of the judgment, is a bar to an action of the same kind brought by the plaintiff against a person claiming under the defendant to the former judgment. There is certainly most respectable authority on both sides of this question. That a judgment in trover for the value of the property amounts to an investiture of title in the defendant is decided in Brown v. Watton, Cro. Jac. 43; Adams v. Broughton, Andrew’s Rep. 18; S. C. Stra. 1070; Murrel v. Johnson, 1 H. & Munf. 450; Floyd v. Browne, 1 Rawle, 121; 4 ib. 285, and Foreman v. Neilson, 2 Rich. Eq. R. 287; and the law is similarly laid down by Mr. Chitty in his work on Pleading, 76, and an 3 Dane’s Abr. c. 77, art. 1, § 2; see also, 5 Eng. Com. Law, 422, and 3 Starkie’s Ev. 1281; Wright v. Walton, 2 Hayw. 16. On the other hand, the following cases hold that there must be a satisfaction, in order to vest the title to the chattel in the defendant. — Morton’s case, Croke’s Eliz. 30; Ortertrout v. Roberts, 8 Cow. R. 43; Hepburn v. Seawell, 5 H. & Johns. 211; Morris v. Berkley, 2 Rep. Cons. Ct. 22S; Curtis v. Goat, 6 Johns. 168; Sanderson v. Caldwell, 2 Aik. 195; Hopkins v. Horsey, 20 Maine R. 449; and this view of the law is sustained by Sergeant Williams, 2 Saund. 148, b; by Shep. Touchstone,”^ title, Gift; and by Chancellor Kent, 2 Com. 387. It seems also, to be the doctrine of the Civil and French Law, Dig. 6 l., 35, 63; Pothier, Traite Droit de propriete, No. 364. See also J ones v. McNeill et al. 2 Bail. R. 466, where it is said if the recovery in trover operates as a sale, it is by implication of law, and that implication can only arise from satisfaction of the value found. See to the same point, Drake v. Mitchell, 3 East. 251, per Lord Ellenborough, cited in 2 Kinne’s Compend. 19, where it is said, “it seems the better opinion that a judgment without satisfaction does not change the properly.” Tisis is not the case ' of separate suits against joint tort-feasers, but the tort is several, a.nd w.e have no hesitation in pronouncing that to constitute a bar to this action, the former judgment against Oden must have been: satisfied. Until then, no property vested in Oden, and consequently he could transmit none to the defendant in this case. This conclusion accords with the justice of the case, and w& think harmonises with the general principle in the law, which forbids that a clear and acknowledged right of action-, once vested, should he destroyed except by release under seal, or something giyen ire satisfaction of the wrong,. The Circuit Court held the former judgment a bar. It erred. Let the judgment be reversed and the cause remanded.