Cobb v. Megrath & Patterson , 36 Ga. 625 ( 1867 )

Walker, J.

The bale of cotton in controversy, was raised by, and was in the possession of J. L. Varner, and the weight of the evidence shows that he retained possession of it until he delivered it to Cobb. It is true that Swepson, the agent of Megrath & Patterson, says that Varner “turned over” to him the bale of cotton in part payment of a claim, “ and further agreed to send said bale of cotton to Cuthbert to the stable yard of C. A. Boynton.” This shows that the possession of the cotton remained with Varner, and by his order the negro delivered it to Cobb. The question .of title cannot be tried in this way. Possessory \farrant lies only where the party complaining has been in possession of the property in controversy, and it “has been taken, enticed, or carried away, either by fraud, violence, seduction, or other means, from the possession of the party complaining, or that such personal chattel, having recently been in the quiet, peaceable and legally acquired possession of such complaining party, has disappeared without his consent, and, as he believes, has been received, or taken possession of by the party complained against,” &o. Rev. Code, Sec. 3956. Unless the party has been in possession of the property, he cannot maintain this sort of proceeding. It was insisted that the case of Meredith vs. Knott & Hollingsworth, 34 Ga. Rep. 222, had established a different rule. We do not think so. In that case the defendant acknowledged that plaintiffs were in possession of the four bales of cotton in controversy. In delivering the opinion of the Court in that case, the Judge says: “After the plaintiffs had purchased the cotton and deposited it with the defendant, his possession was that of the plaintiffs. They had a right to go and take it whenever they chose; but when this was denied, and the defendant refused to let them have it, the possession was ehanged, and that of Meredith was wrongful, tortious and fraudulent.” Page 225. Judge Lumpkin did not preside in this case — one of the parties being a relative. The Court there hold that the party complaining must have been deprived of the possession of the property, or he cannot maintain a possessory warrant. I think myself that the case cited went to the very utmost limit of the law touching possessory warrants. If it meant to decide that a constructive possession in the plaintiff will enable him to maintain this proceeding, it may be very seriously doubted whether it did not go beyond the bounds prescribed by the statute. But as both sides admitted in open Court that there was no dispute about the title, the Court held that the possession of the defendant was the possession of the plaintiffs, and his refusal to deliver changed that possession into himself, and made him liable in this form of action. Perhaps under the admitted facts of that case, the decision was right, but it should not be quoted as a precedent to authorize the right of property to be tried on a proceeding of filis character, nor to authorize a party who has never been in possession, to acquire possession by this means.

The evidence in this case having failed to show that the plaintiffs had been in the possession of the cotton in dispute, the possessory warrant should have been dismissed.

Judgment reversed.