Warren v. Saltenberer

6 La. Ann. 351

• Court: Supreme Court of Louisiana
• Decided: April 15, 1851
• Status: Published

Opinions

The judgment of the court was pronounced by

Preston, J.

We have carefully examined the evidence in this case, and all concur in opinion that the verdict should not be disturbed'nor the judgment reversed, if the action of the plaintiff can be sustained against the defendant personally.

A bill of exceptions was taken to the rejection, as evidence, of declarations of Mrs. Warren. They were not only hearsay evidence, but the declarations of a wife, who could not be admitted as a witness for or against her husband, and were therefore properly rejected.

The only question in the cause with regard to which we have any difficulty is, whether the defendant is liable to the plaintiff personally, or should have been sued as administratrix of her husband’s estate.

The suit is brought for the specific delivery of movable property, which the plaintiff alleges belongs to him, and which the defendant contends belongs to the estate of which she is administratrix. She included the property in the inventory of the estate, but the plaintiff was present at the making of the inventory, and claimed that the property belonged to him, and that it should not be placed on the inventory. The recorder described the property in the inventory as being in dispute. The plaintiff has fully proved that the property belonged to him, and that it should not have been inventoried as belonging to the deceased. Could he do so in a suit against the defendant personally, or shall he be compelled to resort to a suit against her as administratrix!

There are some reasons, special to this case, for refusing to reverse the judgment on the ground that the defendant is not personally liable. She did not except to the action on the ground that she should be sued in her capacity of administratrix, but answered to the merits. She did not oppose the trial by jury on the ground that it was a suit against a succession. She was also a widow in community, to whom half the property belonged if she successfully defended it. Even after verdict, she did not endeavor to set it aside for the reason now urged. We should be reluctant to subject the plaintiff to the expense of this long suit for a small matter, and the vexation and delay of another suit, unless compelled by the clear principles of law.

Our Code of Practice is extremely meagre in its provisions as to actions for movable property, although they are so numerous. By the 11th article, actions with regard to their object are divided into two classes: those by which movables and those by which immovables are claimed. In defining, shortly afterwards, personal actions, it is with difficulty the definitions can be construed to embrace a suit for a specific thing. Arts. 26, 27, 28, 29, 30, 31, 32.

We must be governed, therefore, very much by usage and analogy in deciding against whom the action should be brought. The code prescribes that the real action shall be brought against the person in the actual possession of the immovable claimed, without reference to the title by which he possesses. C. P. art. 43. There is no reason why the same principle should not apply to movable property. The detention of the thing from the owner is the injury he suffers and which he seeks to redress by suit, and that is a personal detention by the possessor. It is by his act that the owner is deprived of his property, and this act imposes on him an obligation to deliver it up.

It is immaterial to the owner and plaintiff by what title the defendant possesses ; it is the possession itself which he claims. So it is unimportant to the defendant by what title he defends himself. If he is owner, that defeats the plaintiff’s claim; if he is bailee of the true owner, the plaintiff is equally defeated; or even if he is naked possessor, the plaintiff cannot recover without showing that he is true owner. It is his sole business to show that, and when shown it is the actual and personal possession of the thing by the defendant which injures him, and for which he is entitled to redress. The title by which the defendant possesses is matter of defence, and he can avail himself of any title but that of the plaintiff.

If, therefore, the property in controversy belongs to the plaintiff, the defendant has no right to detain it from him as administratrix, and such capacity should not screen her from delivering it to the plaintiff. The defendant, as administratrix, could take and keep possession of the property of the deceased alone. That quality does not authorize her to detain the plaintiff’s property, but that of the intestate.

If the defendant bona fide took possession of the property ns administratrix, and defended it as such, the estate would be liable for her expenses and the damages recovered from her. She not only created an obligation based upon a quasi contract to that effect, but the estate was bound to warrant her in the personal action against her. C. P. 379. But suppose the estate entirely insolvent, must the plaintiff suffer all the loss and damage caused by the defendant’s detention of his property, the estate being inadequate to afford indemnification ?

A wealthy man is appointed administrator of an insolvent succession and, as such, takes possession of valuable but perishable movables belonging to me. I show good titles and put him in default. He answers, sue the estate; I sue the estate for the things themselves, and during the pendency of the litigation they are destroyed by fire or otherwise. The irretrievable loss is mine, if I was obliged to sue the estate ; but he would be responsible if I had a right and had sued him for the personal detention of my property.

Therefore, in this State, the action for movable property has generally been brought against the possessor of the property, and although the defendant might undoubtedly be sued in the capacity by which he holds the property, yet the plaintiff is by no means obliged to pursue that course. Thus we sue the keeper of the livery stable for the horse stolen from us, and not the purchaser from the thief, and many similar cases might be mentioned.

The judgment of the district court is therefore affirmed, with costs.