Campbell v. Brooks

47 So. 545, 93 Miss. 853

• Court: Mississippi Supreme Court
• Decided: October 15, 1908
• Status: Published

Opinion

Mayes, J.,

delivered tbe opinion of tbe court.

Without entering into any discussion of the facts in this case,, we simply say that the action of replevin will not lie to recover the deed sued for here. While it is true, as said in the case of Hooker v. Latham, 118 N. C. 179, 23 S. E. 1004, that “a writ of replevin will lie for the recovery either of deeds or certificates of stock, where the object is to regain possession of the-specific paper, and not to test the right to the property which it. represents,” yet replevin “cannot be maintained for the unlawful taking or the wrongful detention of a title deed, where-there is a dispute about its delivery, and the controversy involves the determination of the title to the land conveyed by it.” A deed, as such, is recoverable in an action of replevin, where-same is unlawfully detained, if the controversy be really about, the deed and nothing else, and the delivery of the deed is beyond dispute; but where the real thing sought is an adjudication of title to property, and not the actual recovery of-the-specific deed, as is the case here, the action of replevin is not an appropriate remedy and will not be maintained. The real controversy here is as to title. The real issue in this cáse is-whether the deeds have been delivered, and the court properly dismissed the cause. Flannigan v. Goggins, 71 Wis. 28, 36 N. W. 846; Pasterfield v. Sawyer, 132 N. C. 258, 43 S. E. 799; 7 Lawson Rights, Remedies & Practice, § 3643; Wells on Replevin, § 58, and note.

Affirmed.