Mason v. Sumner , 22 Md. 312 ( 1864 )

After stating the case, {ante pp. 313, 314,)

Bowie, 0. J.,

delivered the opinion of this Court as follows:

The first and second exceptions raise the question of how far the judgment in the action of replevin, concludes the obligors in the bond. The appellant contends, that wherever the title to property is in issue or might have been in issue in the original proceedings, that question becomes “res adjudicata,” and cannot afterwards in any subsequent proceedings be inquired into: he assimilates this to a case of sci. fa., where any defence which might have been pleaded to the original action cannot be set up against the sci. fa.

In the case of Belt vs. Worthington, 3 G. & J., 252, ARCHER, Justice, declared: “The object of the law in prescribing a replevin bond shall be entered into by a plaintiff before he should have the benefit of the writ, was only to give indemnity to the defendant. If in truth he had no right to the property at the time of the institution of the suit, the rejection of the evidence by putting it in his power to recover the value of the goods, would enable him to overreach a just measure of indemnity, and inflict a penalty which the law never contemplated.” Repudiating the analogies sought to be established in that case, to judgments by default in actions on appeal bonds and money contracts, he said the action of replevin was “sui generis,” — “the recovery on the replevin bond ought to be moulded, in sucb a manner as will best subserve the principles of justice,” * * * £ ‘the question (of admissibility of evidence) must always be regulated by a reference to the rights decided in the action, and the nature and character of the bond.” In this case, the obligors in the replevin, were permitted after non-suit in replevin and judgment by default on the bond, to show in mitigation of damages, that they had title to the articles replevied. The same general principle is announced by StephbN, Justice, in the case of Dugan vs. Tyson, 6 G. & J., 458. This principle is exemplified most strongly in the case of Walter, use of Walter vs. Warfield et al., 2 Gill, 216. Where after judgment upon verdict rendered on pleas of non ccepit, and property in the defendant, and judgment for return of property in the action of replevin, upon an action on the replevin bond, against the obligors, the plaintiffs in the replevin, they, as defendants in the action on the bond, were permitted to show in mitigation of damages, that the property was not in the defendant, in the first action, and plaintiff in the second. This case was argued before Aecher, Doesev, Chambees and SpeNCE, J., and affirmed without dissent. In the more recent case of the Cumberland Coal Co. vs Tilghman, 13 Md. Rep., 14, the same doctrine is forcibly expressed. The theory of the action of replevin is thus defined by the learned judge, who, delivering the opinion of the Court in this case, says: “In this State, the action is most generally resorted to, for the purpose of trying the right of possession at the time of the issuing of the writ, and not to determine necessarily the absolute title to the property for all time. And this being so, it follows that if the plaintiff, at the time of bringing the suit, has the right to the possession, he must succeed; or if he have it not, that his action must be defeated. Whoever is entitled to the possession, whatever may be his title in other respects, may maintain or defeat the action of replevin. His right to success in tbe action of replevin, depending entirely on bis right of possession, in reason it follows, that his title to damages must be confined to the extent of interference with that possession. If the right to the possession covers all time, or is limited to a determinate period, the damages will be accordingly graduated as the case may be. In the case now before this Court, the effort on the part of the defendants was to show, as alleged by them, in mitigation of damages, title in the Cumberland Coal and Iron Co. Now this they could not do, because that question was decided in the replevin suit. It was, however, competent to them to show that although the defendant in the replevin suit had title to the possession of tire boat at the time of the judgment rendered in her favor, yet that title was but of short duration, and terminated by contract in a short time after that judgment. No such evidence was offered to the Court below.”

It is obvious from the theory and illustration given in the above extract, that the judgment in replevin, does not conclude the obligors in the bond, from proving by the proceedings in the cause, or aliunde, the character of the possessory right, upon which the plaintiffs in the action on the bond, recovered in the replevin suit. If from these it appears that the relation between the parties to the action in replevin, was that of landlord and tenant, cultivating or renting on shares, and that the subject of replevin was the crop then growing upon the farm of the landlord; such evidence shows a qualified property, or joint right of possession, which would defeat the action of replevin by the tenant, and at the same time diminish the claim for damages on the part of the landlord, founded on his “prima facie” right to the value of the appraisement, showing he was entitled to but a moiety of the same. Such testimony was proper to rebut the “prima facie” case of the plaintiffs on the bond.

(Decided November 18th 1864.)

His right to damages must be confined to the extent of bis ownership over the property replevied. If as joint owner of the property, he was entitled to such possession, as precluded his tenant from replevying, and secured him a judgment of “retorno hdbendo,” yet his title was not so absolute and entire, as to entitle him to recover of the principal or surety, the full value of the property, or more than the value of his share of the crops. If we are correct in these premises, it necessarily follows, that the prayer offered on the part of the appellant was not proper, since it required the Court to instruct the jury that the appraisement was the measure of damages; this we have seen was but “prima facie” evidence subject to be rebutted by such testimony as was offered on the part of the appellee. The modification of the appellant’s prayer hy the Court, in our judgment, proposed the just standard of damages; and there being no error in the several rulings excepted to, the judgment below will be affirmed.

Judgment affirmed.