Buckley v. Buckley , 9 Nev. 373 ( 1874 )

By the Court,

Whitman. C. J.:

To the complaint in this action to recover a band of sheep, respondent pleaded in bar a certain suit pending between herself and Montgomery and Short for the recovery of the same property; and that she held the same by virtue of claim made as by statute provided. These facts being proved, the district court held the defense good; and that the property was virtually in the custody of the law, and that appellant should have intervened in the action so proven to exist. Admitting a right to intervene, still that is not exclusive; so the main question is, was the property in the custody of the law ?

In a very well considered case, applicable to this, Parsons, C. J., clearly’expresses the view herein adopted thus: “It is true that anciently, replevin was generally /sued out to replevy cattle taken by distress as a pledge; but in fact, replevin lies for him who has the general, or special property in chattels, against him who has wrongfully taken them. But chattels in the custody of the law cannot at common law be replevied, as goods taken by distress upon a conviction before a justice, or goods taken in execution; and by parity of reason, goods attached by an original writ, as security for the judgment, cannot be replevied. But if the goods are wrongfully taken by virtue of legal process, the remedy of the owner was by action of trespass or trover, against the officer. For the common law would not grant process to take from an officer chattels which he had taken by legal process already issued. But the common law has, in this respect, been altered by the statute of 1789, c. 26, sec. 4. This statute authorizes the suing of a writ of replevin against the officer, for chattels which he has attached or seized in execution, provided the plaintiff in replevin be not the debtor. This alteration of the common law has been productive of much practical inconvenience; but it must rest with the wisdom of the legislature to decide whether the common law, in this respect, should or should not be restored. As a general principle, the owner of a chattel may take it by replevin from any person whose possession is unlawful, unless it is in the custody of the law, or unless it has been taken by replevin from him by the party in possession. The plea, in this case, does not allege any property in Stubbs; but it alleges that the goods were delivered to him by the officer, in obedience to a replevin sued by Stubbs, not against the plaintiffs but against Lund. Stubbs’ possession was, therefore, so far legal against Lund, that he could not recover them back again by another replevin, but only on a retorno habendo, if he should prevail against Stubbs.

“But Stubbs cannot by his own writ acquire any right of possession against the plaintiffs, who were not parties to it. They could not plead to Stubbs’ writ, nor could an retorno hábendo be awarded them. If Stubbs should recover judgment against Lund, certainly that judgment could not bar the plaintiffs from suing a replevin against Stubbs; and it cannot be admitted that the mere producing of his writ can more effectually protect him against the plaintiff’s suit, than a judgment in his favor could. But the defendant has urged in support of his plea, that if the plaintiffs should recover on this writ, he cannot make. restitution to Lund, if this latter should recover. This is true; but this argument cannot avail Stubbs. If he should recover against Lund, the objection fails; and if he should not, it is his fault to have sued a replevin against Lund, without any legal cause of action. The court cannot decide that the allegations of the plea are sufficient to abate the writ, without also deciding that the owner of chattels taken from him by a trespasser, finding them in the possession of a stranger, who has taken them by replevin from the trespasser, cannot maintain replevin against the stranger. But the law will not authorize such a decision;- for no transaction between the stranger and the trespasser can bind the right of the owner.” Illsley et al. v. Stubbs, 5 Mass. 280; Hagan v. Deuell et al., 24 Ark. 26.

If this holding operate harshly against respondent, it is .her own fault; but surely one having the right of possession to property, cannot be expected to stand by while strangers wrangle over it, subject as it must be to all the contingencies of loss, which practically surround personal property in litigation. The case must go back for a new trial, and for that reason it is.proper to note some other claims of error, the decision of which should affect the retrial. Proof of a contract between appellant and respondent’s intestate was excluded, (except for a special purpose,) against the former’s exception. The ruling was correct; the condition precedent of the contract was the delivery and reception of thirteen hundred sheep to be kept for two years; and there was no written agreement; so the contract was void under the statute. Comp. Laws, Sec. 289. But the ruling could not possibly have hurt appellant; as, the contract being held valid, he .could not have recovered at most more than the original number delivered, in the form of the present action; while there being no contract, he would be entitled to the present possession of the whole or a major portion of the band described, provided always the jury believed his witnesses, to the exclusion of the testimony tending to prove a gift from him to respondent’s intestate.

The court erred in charging the jury that appellant must recoverall or none; because such instructions involved a question of fact, and did not clearly state the law, Of course, in a case like the present, a description must be so clear that an officer can find the property; and in one view this description is not so clear; as with the exception of the specification of forty head of bucks, it is general, of a band without giving brands, age, sex, or any other clew for the distinction of one sheep from the other. But there was evideuce tending to elucidate this general description; and then the complaint, by the statement that the value of the sheep was three dollars per head, put them all on the same plane; which assumption was recognized by the answer; so to neither party, according to the pleadings, and there is nothing in the evidence contradictory, could it make any difference whether one sheep or another was taken or kept. Undoubtedly, had appellant proved his right to one hundred sheep and waived a return, he could, as the pleadings and evidence stood, have recovered three hundred dollars. Why not then, there being no such waiver, the one hundred sheep; each of such sheep being the exact equivalent of every other in the band ? To avoid any complication, however, appellant may desire to amend his description, in which case he should be allowed to do so. The case is eminently one for friendly settlement, rather than for hostile litigation; but that is beside this opinion. All this Court can do is to point out, as has been attempted, the legal road to the rights of the separate parties.

The judgment and order appealed from are reversed, and the cause remanded.