State v. Hughes ( 1902 )

Whitfield, O. J.,

delivered the opinion of the court:

The statute (§ 1513, code 1892) expressly declares a deed to land to be itself personal property, and §§ 1173, 1174, make all personal property the subject of larceny. It is obvious, therefore, that it was error to sustain the demurrer to the indictment. It is true that at common law title deeds to land passed by deed, descent, or devise to tbe grantee, heir, or devisee; .but tbe deeds • themselves were even then a species of personal property. See Darlington, Pers. Prop., p. 13; 18 Am. & Eng. Enc. Law, p. 409, II. (2). In Anderson, Law Diet., p. 598, it is said: “The property must be j>ersonalty. At common law, taking a tree, flower, fruit, or title deeds is a trespass upon tbe land. But if any sucb object was severed by tbe owner, or by tbe thief at another time, that act made it personalty. Statutes have made felonious, appropriations of many sucb articles as formerly constituted trespasses. Formerly, also, bonds, bills, notes, and other evidences of debt, having no intrinsic value, and not importing property in tbe possession of tbe bolder, were not subjects of larceny.” Our statute (§ 1176) makes “bonds, bills, notes,” etc., tbe subject of larceny. See, also, § 1179. Tbe refinements of tbe common law on this subject have undergone great and necessary statutory change. Under our law it is clear that a deed is personal property, and tbe subject of larceny. See 12 Am. & Eng. Enc. Law, p. 783; 2 Barb. Or. Law, p. 785 (2).

Reversed, demurrer overruled, and cause remanded for trial.