Matthews v. Ott

58 N.W. 774, 87 Wis. 399, 1894 Wisc. LEXIS 121

• Court: Wisconsin Supreme Court
• Decided: April 10, 1894
• Status: Published

Opinion

Newman, J.

It is agreed that the question in this case is whether an action of replevin can be maintained against an assignee for the benefit of creditors for property in his possession, claimed by him under a valid assignment. The contention turns upon the point whether the possession of the asáignee is the custody of the law —in law Latin, cus-todia legis.

Many cases having more or less bearing upon the question are cited on either side. But, really, it is not an open question in this state. Such actions have been countenanced and sustained by this court. Lee v. Simmons, 65 Wis. 523; Singer v. Schilling, 74 Wis. 369; and Starke v. Paine, 85 Wis. 633,— were such actions.

The question is not difficult, on principle and reason. The argument is this: The assignment gives the assignee no better title than his assignor had. The assignee’s custody of property to which his assignor had no title is wrongful, as against the lawful owner. Such a wrongful custody could never be a legal custody,— could never be custodia legis. The conclusion is that any person other than the assignor may lawfully try titles with the assignee in an action of replevin. The rule is, even where property is in the actual custody of the law, as in the hands of an officer on execution or attachment, that any person, other than the defendant in the execution or the attachment, may maintain an action of replevin against the officer. 20 Am. & Eng. Ency. of Law, 1064.

By the Court.— The order of the circuit court is affirmed.