Sprague v. Clark

41 Vt. 6

• Court: Supreme Court of Vermont
• Decided: February 15, 1868
• Status: Published

Opinion

The opinion of the court was delivered by

Pierpoint, C. J.

The only question involved is whether the county court were right in holding that the plaintiffs - had shown no such right to the property in question, as was necessary to enable them to maintain this action of replevin.

This question, we think, must be determined by the construction of our statute. The statute is that, when any goo.ds, etc., shall be unlawfully taken, or unlawfully detained, from the owner’ or the person entitled to the possession thereof, or, when attached-on mesne process, or taken in execution, are claimed by any person other than the defendant in the suit, or debtor in the execution, on which they are so taken or attached, such owner or other person may cause them to be replevied. Gen. Sts., p. B20, § 13. In section 16, on same page, it is provided that, “ If it shall appear, upon, the nonsuit of the plaintiff or upon trial, that the defendant is entitled to a return of the goods, he shall have judgment therefor accordingly.”

Under this statute, any person who is entitled to the possession' of any goods or chattels, may maintain replevin against any person who unlawfully take's or detains such goods or chattels from him. To entitle him to the possession, it is not necessary that he should be the owner, or that he should be entitled to the possession as against all others. It is sufficient if he is entitled to the possession as against the person who takes it from him. In such." case the taking it from him is an unlawful taking. A person who is in the possession, claiming the property, or an interest-in it, or a legal right to the possession, may maintain replevin against any person taking the property from him, who can not-show a better right to it. The defendant in the action of re-plevin, can prevail only when it appears that he is entitled to a. return of the property, and that can be only when it appears that his right is superior to that of the plaintiff. The question is to be determined according to the respective rights of the; parties to the suit.

This, we think, is apparent from the language of the statute, and is in accordance with the practice under it for many years-» It has been repeatedly held that in this state the action can be maintained as an adversary proceeding, only by force of our statute, which expressly declares the circumstances under which it may be brought, and carefully prescribes the mode of procedure. See Eddy v. Davis, 85 Vt., 247, and the cases there referred to. Hence, in determining the question now before us, but little aid can be derived from the English decisions,- or those of our neighboring states. Under our statute replevin has become a common and appropriate action in which to try the title to personal property.

It appears from the exceptions, that, when the plaintiffs were-appointed the administrators of Bond’s estate, they found a portion of the property to have been in his possession at the time of his death; other portions of it they found in the possession of third persons in the vicinity, who, recognizing Bond’s title to it, delivered it over to the plaintiffs as his administrators. It was thus collected together by the plaintiff's, and held by them as such administrators claiming it as the. property of Bond’s estate. While being so* held, it was taken from them by the defendant without their knowledge or consent. Afterward, when called upon by the plaintiffs, the defendant did not claim that he was the owner of the. property, but virtually conceded that Bond was the owner. He claimed the right to dispose of the preperty, and claimed half the profits on it, but said he did not consider that he had the right to take the property from Bond when he was alive. Upon what the defendant’s claim was based, does not appear. So far as the case shows, it was a mere naked claim unsupported by any right.

Upon the facts stated by the plaintiffs’ witnesses, we think they had clearly made out a prima facie case, the evidence tending strongly to show not only that they were entitled to the possession as against the defendant, but that the title to the property was in Bond’s estate. It was certainly sufficient to put the defendant upon the showing of his right in the property, if he would have a judgment for its return.

We think the case should have been submitted to the jury.

Judgment reversed and case remanded.