Reese v. Harris

27 Ala. 301

Opinion

KICE, J.

To maintain detinue, the plaintiff must have, at the time the action is commenced, a general or special property in the specific thing sued for, and the right to the immediate possession thereof. Unless both these rights concur, at the commencement of the suit, the action will not lie. 1 Chitty’s PI. 122.

Where the plaintiff has not had actual possession of the thing sued for, he must resort to proof of his title, in order to show his right of possession. — 3 Starkie’s Ev. 1483. And in such case, it is not sufficient to prove an equitable title. If he has never had possession, he cannot recover without showing a legal title. — Parsons v. Boyd, 20 Ala. R. 112.

At common law, neither the creditors nor next of kin were entitled to the personal property of an intestate. We must presume that law to be in force in Virginia, except so far as it has been repealed or amended by the statutes of that State. Those statutes, shown in the present record, do not cast the title of an intestate to personal property upon his next of kin, but upon his personal representative. The right given by those statutes to the next of kin, as to the personal property of the intestate, is a right to distribution ; and that right is given sub modo. The personal representative is authorized and required to pay the debts of the estate, expenses, &c. &c.; and, if necessary for such purposes, to sell all the personal property, Before any administration granted or distribution made, the right of a sole distributee, who has never had possession, to the personal property of the intestate, under those statutes, is not such a right as can entitle such distributee to recover any such property in detinue. — Jones v. Tanner, 7 Barn. & Cress. 542 ; 2 Wms. on Ex’rs, 1187 ; Vanderveer v. Alston, 16 Ala. R. 494.

The only right which the plaintiff has, or pretends to have, to the slave in controversy, is the right conferred by those statutes upon her as the sole heir-at-law and distributee of her sister, Sally Williams, or as the sole heir-at-law and distributee of her mother and of her said sister. In other words, the right asserted by the plaintiff, and relied on for a recovery in this action, is no more than the right of a sole distributee who has never had possession, to the personal property of the intestate. That right, as'we have seen, can never entitle her to recover in this action. And as it is clear she has no other right, it is useless to inquire whether the court below did not err on some other point; for, if there was error, there could not be injury in legal contemplation. — Caruthers v. Mardis, 3 Ala. 599; Marshal v. Betner, 17 ib. 836; Gilmer v. Ware, 19 ib. 252.

Judgment affirmed.