Lamping v. Keenan , 9 Colo. 390 ( 1886 )

Beck, C. J.

This action having been commenced in á justice’s court, no written pleadings appear in the case, but an inspection of the proceedings shows that the claims to the property in dispute set up by both parties to the controversy are precisely the same; that is to say, both parties claim ownership and right to possession by virtue thereof, and both trace title to the same source. The property was originally owned by Martin' Keenan, in his life-time. The plaintiff, Thomas Keenan, claims to have purchased it from the owner direct; while the defendant, Lamping, claims to have purchased the same at' an execution sale held pursuant to judicial proceedings against the administrator of said Martin Keenan, deceased. This latter proceeding was commenced by attachment, and the property was attached to satisfy the claim of a certain creditor of the deceased. The trial of this replevin suit, therefore, was on the merits; and the plaintiff succeeded. in establishing a regular and valid title, with right of possession, while the defendant signally failed to establish either. The defendant’s proof showed a personal judgment against the administrator, and an execution issued against the express inhibition of the statute. The entire proceeding was consequently without any validity whatever. Gen. Laws, § 2924; Mattison v. Childs, 5 Colo. 78.

Counsel for appellant say that they do not claim the judgment of the jxistice of'the peace has any binding force; nor that the sale on execution conveyed any title to the purchaser if the property sold belonged to a < stranger to the action; but they insist that the possession thus obtained by the appellant was not tortious, and that replevin will not lie in such a case, without a demand upon the purchaser, and his refusal to deliver up the property. This might be a tenable proposition if the defendant’s position on the.trial below had been consistent with it. But it was not so, in any view of the proceedings as presented to us by the record. His position was not that of one who had innocently come into possession of the chattels,, and claimed a right to retain them until such rights should be terminated by a demand therefor by the true owner., On the contrary his claim was that he was the true owner himself, by virtue of his purchase at the execution sale. He testified that he had paid every dollar the property was worth, and introduced other testimony to the same effect. He also attempted to impeach the plaintiff’s title, and to show that it was not acquired in good faith, by proof that Martin Keenan, the vendor, treated the property and dealt with it as his own' long after the execution of the bill of - sale to the plaintiff. The defendant having, therefore, contested the case upon the merits,, on a claim of superior right to the property, the case is brought within the class of cases wherein a demand is not required. It also comes within the principle that proof of any circumstance which would satisfy a jury that a demand would have been unavailing is sufficient to excuse this proof. • Wells, Repl. §§ 313, 314, and cases cited.

The decisions upon the question when a demand is necessary are neither uniform nor entirely reconcilable; but we think the better doctrine is that a demand is only required when it is necessary to terminate the defendant’s right of possession, or to confer that right on the plaintiff; but when the plaintiff claims the ownership of the property, and the right of possession as incident to that ownership, and the defendant’s right claimed is precisely the same, as in the present case, no demand is necessary. The opinions of the courts, in the following cases are cited, in so far as they sustain the views above expressed: Smith v. McLean, 24 Iowa, 322; Eldred v. Oconto Co. 33 Wis. 140; Shoemaker v. Simpson, 16 Kan. 43, 52; Pyle v. Warren, 2 Neb. 241, 253; Homan v. Laboo, 1 Neb. 204, 210.

For the reasons assigned, we are . of the opinion that the judgment in this case should be affirmed.

Affirmed.