Elwood v. Smith

9 How. Pr. 528

• Court: New York Supreme Court
• Decided: April 15, 1854
• Status: Published

Opinion

Harris, Justice.

To sustain an action like this, the plaintiff must not only show that he is lawfully entitled to the possession of the property in question, but that the defendant unlawfully withholds it. The latter fact can only be established when it appears that, at the commencement of the action, the defendant had such control over the property that he might, if he would, "have delivered the possession to the plaintiff. A wrongful withholding implies a - power to deliver. If the defendant could not have delivered the property to the plaintiff he ought not to be punished for not doing it. In this case the defendant had bid off the property at the sheriff’s sale, and had declared that it was his intention to remove it. But he had not done so. He had not assumed to exercise any control or dominion over the property. If the plaintiff had a right to the possession under his mortgage, "there was no one to prevent his taking it. This action was unnecessary. The nonsuit was, therefore, properly granted, and the motion for a new trial must be denied.