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a third person who converts it to his own use during the time of the hiring, his only
remedy being case for the injury to his reversionary interest. 7 Dana, 247-48.

c. Though the owner must have had possession of the chattel at the time of the con-
version, in order to maintain trover (7 Dana, 247-48), it is sufficient for him to allege that
he was the owner; and, in general, proof of ownership is sufficient, because, in general, title
to a chattel gives possession. See cases cited ante, page 102.

d. But trover can not, like trespass, be founded on a merely possessory right ; and there-
fore it is not sufficient for the plaintiff in trover to allege and prove merely that he had
possession of the chattel at the time of the conversion ; for, though possession is prima
facie evidence of title, when it is shown that the plaintiff had no title, the defendant
should not be compelled to pay him even for a tortious conversion ; and more especially as
the true owner may recover damages again for the same tortious act ; and hence it is
settled that the defendant may prove that the title was in a stranger. 3 Dana, 424.

(3) As to the injury,

"The gist of trover is a conversion without force " (4 J. J. M. % 18) ; and though, where
the chattel has been forcibly taken by the defendant, the plaintiff may waive the force
and bring trover for the conversion (1 Ch. PI., 154 ; 6 Mon., 298; 2 B. Af., 369), he should
not, according to the common law, allege the force, for that would make his case an action
of trespass. 4/./. M., 18.

I have used and may continue to use the word " trover," as a matter of convenience,
though, under our Code, it is seldom applicable to actions for conversion. As, according to
the common law, the plaintiff in trover could not allege force, though his goods had been
forcibly taken, the practice was for him to account for the defendant's possession by {in



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106 PLEADINGS PETITIONS. [TITLE VII.

most cases falsely) alleging that the defendant "found the goods" — an allegation which
was not traversable. I Ch. PI., 158. But as, under the Code, the petition must be
verified, an allegation that the defendant '* found " the property is not allowable, if untrue;
and the plaintiff should state the real facts relied on to show a conversion.

An action for conversion may be supported by proof that the property was wrongfully
taken by the defendant (6 Mm., 298; 2/. /. M., 86; Christopher v. Covington and Smith,
2 B. M», 357) ; or, where the defendant acquired possession rightfully, his wrongful as-
sumption of ownership, or his wrongful use or misuse of the property (1 Ch. PL % 154; 2
J.J. M. t 86; 14 Bush y 658); or his wrongful detention of it, after a demand and refusal
to deliver possession. I Ch. /Y. t 155-56; 2 J. J. M. f 86.

And the plaintiff should allege a conversion to the use of the defendant ; consequently,
case, and not trover, is the remedy against a wharfinger or carrier who has lost the property^
or from whom it has been stolen (Comyn's Digest, title Action upon the case, A) ; and
in an action against a husband, or against him and his wife> for a conversion by her
or by both, the plaintiff should allege that the conversion was made to the use of Ike km-
band, as, in either case, he gets the benefit of it. 2 Dana, 238.

It seems that, under the Code, if the tort relied on by the plaintiff is the forcible
taking of a chattel by the defendant; the plaintiff, if he wish to bring what was formerly
an action of trespass, should not allege a conversion to the defendant's use; and, if he
wish to bring what was formerly an action of trover, he should allege a conversion by the
forcible taking ; the prayer, in either case, being for damages, though, in the latter case,
the criterion is the value of the property.

(4) As to damages.

The plaintiff is entitled to recover the value of the property at the time of the con-
version ; and the jury may, but is not bound, to give interest on that value, but can not
give the value of the use of the property. 3 Bibb, 92; 7 Mm., 213; z J. J* M., 393 ; 4
Id., 26, 27; 1 Bush, 499.

2. As to actions on implied contracts for the value of the property, see ante, note I, page 80.

VII. Petitions in actions for possession of personal property.

Formerly, the plaintiff's remedy for such recovery was an action of detinue or an action
of replevin, the distinctions between them being, 1, that, in replevin, though not in
detinue, the plaintiff could obtain immediate delivery of possession ; and, 2, that, in
replevin, the plaintiff could recover damages for both the wrongful taking and the wrong-
ful detention of the property, whilst in detinue he could recover damages for the wrongful
detention only. But, under the Code, there is no distinction, so far as petitions are con-
cerned, between cases in which the plaintiff seeks, and cases in which he does not seek,
immediate delivery of possession; because, 1, in either case he can recover damages for
the wrongful taking of the property (if it has been wrongfully taken) as well as for the
wrongful detention (g 83, subs. 3); and, 2, his right to immediate possession should be
presented in an affidavit, which may be filed at or after the commencement of the action
(Title 8, chapter 2); though, no doubt, his statement of the requisite facts in a verified
petition would be treated as equivalent to a statement of them in a separate affidavit. 17
B. M., 321 ; 2 Bush., 191.

I. What constitutes specific personal property.

" The goods for which it [detinue] lies must be distinguishable from other property,
and their identity ascertainable by some certain means: thus, it lies for a horse, a cow, or
money in a bag ; but for money or corn, &c, not in a bag or chest or otherwise distinguish-
able from property of the same description, detinue can not be supported. It lies for
the recovery of charters and title-deeds, the property in which generally accompanies
the title to the land to which they relate. And it is sustainable for not delivering specific
chattels in pursuance of a bailment or other contract." 1 Ch. PL, 120. And detinue lies
for promissory notes. I J.J, M., 500. And in Hail v. Reed, 15 B. M., 488, it was held



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CHAP. II.] IN ACTIONS FOR POSSESSION OF PERSONAL PROPERTY. 107

that this action lies for "American oil" taken from the plaintiff's well and placed by the
defendant in his own barrels; but the court said: "Whether the barrels in which the
wrong-doer has placed it may also be recovered with the oil, or other barrels be furnished
by the owner, we need not at present decide."

2. As to describing the property, see note 2, page 84.

3. As to the plaintiff's right or interest,

" A person who has the absolute or general property in goods and the right to immediate
possession may support this action, although he never had the actual possession ( I Bibb,
187; 2 Id., 610): therefore an heir may maintain detinue for an heir-loom; and, if A
deliver goods to deliver to B, the latter may support this action, the property being vested
in him by the delivery to his use. ... A person who has only a special property, as
a bailee, &c, may also support this action, where he delivered the goods to the defendant,
or they were taken out of such bailee's custody." I Ch. PI., iai ; 3 Dana, 54.

And this action "may be used for specifically enforcing contracts" (5 Litt., 258); and
may be maintained for property lost at gaming (7 B. M., 243) ; or fraudulently purchased
from the plaintiff {Afansell v. Israel, 3 Bibb, 510; 80 Ay., 650) ; or paid to the defendant on
a parol contract for land which he refuses to convey ( 1 Mar,, 24) ; or sold to the defendant,
if the contract has been rescinded by a court of equity without an order for restitution.

5/./. ^1.38.

And it lies in favor of a bailor against his bailee, though the bailor has no title, unless
"some one else has manifested a superior title." I Dm/., 300.

And adverse possession of a chattel for five years (unless the owner be under disability)
gives such title as will support detinue. 3 J, J, M., 368.

And possession at the time of the taking is prima facie evidence of the plaintiff's
right ; but the defendant may defeat the action by showing that the right was in a stranger.
3 Dana, 424.

And it was formerly held that a mortgagee of a chattel could maintain detinue there-
for, after the debt became due. 4 B. Af., 365; I Met., 665 ; 3 Bush, 656. But see contra,
12 Bush, 705; 13 Id., 45; 14 Id., 788; 83 Ky., 391.

But this action does not lie in favor of one joint tenant or tenant in common against
another (3 Litt., 225; 1 Man., 29) ; nor by a distributee or legatee, without the consent of
the executor or administrator. 2 Bibb, 594; 1 Mar., 617.

4. As to the injury.

The gist of detinue was the wrongful detainer and not the original taking ; and, as the
plaintiff could waive the trespass, it could be maintained against any person who wrong-
fully detained the chattel, whether he acquired the possession rightfully or wrongfully (2
Mar., 269; 5 Dana, 36); and though he may have acquired the possession wrongfully, it
was improper for the plaintiff to allege that fact : thus, the plaintiff having alleged both
a wrongful taking and a wrongful detention, a general verdict for damages was set aside,
because it was impossible for the court to say that the damages were not given in part for
the wrongful taking. 3 Bibb, 512. And where there had been a wrongful taking, as the
plaintiff had no right to allege that fact, the practice was to account for the defendant's
possession by alleging that the plaintiff had lost, and the defendant had found the chattel,
which allegation was not traversable. 1 Ch. PI., 123; 5 Dana, 36.

My remarks in note (3), ante, page 105, concerning that fiction in the action of trover are
applicable here ; and, moreover, as I have suggested, J 83 of the Code declares that the
plaintiff in an action for specific personal property may recover damages for taking it ;
and it seems, clear that the plaintiff has the right, and that it is sufficient for him either to
state facts showing an unlawful taking and detention— as, that the defendant unlawfully
took the chattel from the plaintiff's possession and has ever since unlawfully detained it ;
or facts showing an unlawful detention — as, that the defendant has possession of the chattel
without right, and unlawfully detains it.



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I08 PLEADINGS — PETITIONS. [TITLE vii.

5. Averments of a request for delivery of possession.

If the action be founded on a contract to deliver the property sued for "on request,"
the plaintiff should not only aver a request (Hardin, 79, 80; 5 Litt., 235; 3 J. J. M., 6; 3
Bibb, 85) ; but he should state when and where it was made. See form in 2 CA. PL,
277; 1 Bibb, 254-5; 2 Id., 550; 3 /./. M., 7, 8.

In all other cases, averment of a request was necessary for the purpose, and only for
the purpose, of enabling the plaintiff to recover damages for detention before commence-
ment of the action. I Bibb, 189, 604; 5 Dana, 36.

And, clearly, such averment is necessary now, for that purpose, in an action against
a defendant who came into possession rightfully. Formerly, as has been shown, there
was no distinction, in detinue, between such a defendant and one who canie into possession
wrongfully; because the plaintiff could recover damages for the detention only. But as,
under { 83 of the Code, the plaintiff, in an action for the property, may recover damages
for taking it as well as for detaining it ; it seems clear that, if he allege a wrongful
taking, he need not allege a request to deliver the property in order to recover damages
for detention before the commencement of the action.

6. As to value and damages.

"In detinue, the plaintiff, if he obtain a judgment, will be entitled to the specific
thing sued for, if it can be had ; and, therefore, if he can not get it, he should have its value
at the time when it is decided that the thing is his. If it shall have increased in value
from the first caption or detention of it, until the trial, as it is his, the accruing of value
is his also. If it shall have decreased in value, without the fault of the defendant; for
the same reason, the plaintiff, if he elect to sue for it specifically, should be content with
its diminished value. For as he elects to take the thing itself, of course he elects to take it
as it is, and of whatever value it may be. If it shall have been injured in quality, or
reduced in value, by the abuse of the defendant, the plaintiff may recover for this injury
or reduction, in damages. In this respect, there is no analogy between detinue and trover.
In the latter action, the plaintiff abandons his right to the thing converted and asks for
damages for the conversion of it by the defendant" (2 /. /. M. t 393; 3 B. M., 314);
and, see Strubbee v. The Trustees Cincinnati Railway, 78 Ay., 48 1, in which it was held that
the owner of timber-trees, which had been cut down and converted into railroad-ties by a
trespasser, had a right to recover the ties or their value from a bona fide purchaser.

As to damages for detention of the property pendente lite, see note 3, page 87.

" If the action be brought for several articles, the value of each need not be stated
separately in the declaration*; though the jury should sever the value of each by their
verdict. I Ch. PL, 124; 3 Mon., 60; 6 Id., 62. But a verdict for damages for the detention
of several articles should be in gross for the detention of the whole. Lift. S. C, 114.

Formerly, as declarations were not required to be sworn to, the plaintiff could fix the
alleged value at any sum he pleased; but as, in an action for immediate delivery, the
value of the property must be sworn to (Code, §§ 181, 182), the plaintiff can not right-
fully state the value as being greater than it is when he brings his action ; and, there-
fore, it seems that, if, upon the trial, the proof should show an increase of value, the jury
should be allowed to find the, then, value, without an amendment of the petition, and, at
any rate, that the plaintiff should be allowed to amend his petition so as to conform to the
facts proved. Code, % 134.

Formerly, also, the practice was for the plaintiff to allege that he had sustained dam-
ages to the amount of a certain sum (2 Ch. PL, 278) as to which he was not restricted by
an oath. But, under the Code, a prayer for damages seem sufficient.

7. As to verdicts and judgments in actions for specific personal property, see \ 330 of
Code, and notes thereto.

* But, if the plaintiff* claim "immediate delivery of several articles, his affidavit must state the value
of each." Code, \ x8a. See, however, ante, page 85, as to numerous articles of the same species.



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C»AP. II.] IN ACTIONS FOR POSSESSION OF REAL PROPERTY. IO9



VIII. Petitions in actions for possession of real property.

1. For what property this action lies.

"This action is, in general, only sustainable for the recovery of possession of property
upon which an entry may in point oi fact be made, and of which the sheriff could deliver
actual possession : therefore, it is not in general sustainable for the recovery of property
which, in legal consideration, is not tangible ; as, for an advowson, a rent, common in gross,
or other incorporeal hereditament, or a water-course " [except by describing it as land
covered with water] (1 Ch. Fl. t 190) ; or land which appertains to a ferry, for the ferry,
which is incorporeal, is the principal thing, and land which is incident thereto must follow
its principal. Lit/. S. G, 184.

2. As to describing the property, see ante, note 2, page 84.

3. As to the plaintiff ' s right or interest.

It is sufficient for him to allege that he is the owner and entitled to possession of the
land ; and under such allegations he can prove either a title deduced from the Common-
wealth ; or a possessory title, as, by adverse possession, during fifteen years, against owners
not under disability. I Mar., 233; 3 Id., 30; 4 Dana, 483; 7 Id., 529; 9 B. M., 59.
As to what constitutes actual adverse possession, see notes to Bullitt &* Feland* s Gen. Statutes,
edition of 1887, pages 882 to 884.

And, in an action against a defendant who intruded on the plaintiff's actual posses-
sion, without a right of entry, it is sufficient to allege and prove that the plaintiff had
possession when the defendant entered : in such cases, the court will not permit the defend-
ant to rely on an outstanding title and right of entry in a stranger to the action (4 Dana,
462; Adams v. Tiernan, 5 Id., 394; 11 B. M., 98; 2 Met., 416); aliter, if the defendant
came into possession rightfully. Fowke v. Darnall, 5 Litt., 316.

But a writ of forcible entry is the remedy, and the only remedy, of a person who is
ousted by one who has the right to enter. Code, £§ 452, 454; 7 J. J. M., 603; 2
Met., 418.

And, as the plaintiff must have an immediate right to the possession in order to main-
tain this action, if a lessee be ousted by a stranger, the right to sue for the possession is in
the lessee, the lessor being put to a special action for any injury to his reversionary rights.
84 Ky., 312.

As a general rule, an equitable title to land will neither support nor defeat an action
for the possession. 2 Bibb, 417. Thus, a city can not maintain such action for a street
which has been dedicated to public use without being conveyed to the city ; the right of
action being in the holder of the legal title to the street 8 Bush, 126. And, in accord-
ance with that rule, it was formerly held that a mortgagee, after the debt became due,
could maintain ejectment even against the mortgagor; and, according to Brookhaven v.
Hurst, I Met., 665 ; and Brown v. Phillips, 3 Bush, 656, that rule was not changed by the
Code. But it was held otherwise in Newport, &-V., Bridge Co. v. Douglass, &c, 12 Bush,
705, in which the court said: "The mortgagee can not now prevail in an action at law
against the mortgagor who is the real owner of the property. To an action at law for
possession, the mortgagor may answer and rely on the fact that he is the owner of the mort-
gaged premises, and that his title is merely in pledge for a special purpose, and on his
motion the cause will be transferred to the equity side of the docket, where the security
of the complainant can and will be made available for all the purposes of his lien, and the
defendant at the same time protected against the unnecessary hardships which frequently
resulted from the old rule of treating the mere lien-holder as the owner of the estate.' 1
And see ace. 14 Bush, 791 ; 83 Ky., 395. And in Bartlett v. Borden, 13 Bush, 45, it was
held that the mortgagor could maintain an action for the possession of land on which a
stranger had entered without right, the court saying : " A defendant, without color of right
in himself, can not defeat a recovery of real property by a plaintiff who has made out a
case of ownership and immediate right to the possession, by showing the legal title to be



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1 1 PLEADINGS — PETITIONS. [TITLE VU.



outstanding in another, who holds it in trust for the plaintiff, and who, so far as he is
interested at all, will be benefited by his [the plaintiff's] success, or, as the rule was pithily
stated by Lord Mansfield, ' nor shall a man defend himself by any estate which makes
part of the title of the plaintiff.' "

And in England, whilst it was held that the title of a trustee could be set up by him
against the cestui que trust, it was also held that, "where trustees ought to convey to the
beneficial owner, it will be left to the jury to presume that they have conveyed accord-
ingly." I Ch. PL, 192.

4. As to the injury.

This action is only sustainable for what in fact, or in point of law, amounted to an
ouster or dispossession of the plaintiff; and it is necessary that the defendant should
be in possession at the commencement of the action. 1 Ch. PL, 194; 2 Duv., 16. Chitty
says: "An actual ouster may be by driving cattle out of the land, or by not suffering the
party to occupy it." 1 Ch. PL, 195. Clearly, the statement as to "not suffering the
party to occupy it " is correct; as, when a tenant or other person in possession refuses to
surrender it to the person entitled thereto. But, to hold that an action for possession of
land can be maintained against a defendant, because he has driven cattle out of it, would
not only be inconsistent with the rule stated by Chitty himself— w*., that the defendant
must be in possession of the land at the commencement of the action ; but would be in
conflict with several decisions of our Court of Appeals, in which it was held that occasional
Acts of owttership (though frequently repeated under a claim of title) — , such as cutting
wood or timber or tan-bark, or making sugar, on the land, do not constitute such an
ouster as will authorize an action of ejectment (I Mar.,' 105 and 208; 4 Dana, 635; 8 Id.,
166; 3 J* J- M., 552; 15 B. M., 32; 2 Duv., 15, 16) ; nor even the having erected a shanty
•which was never used nor occupied. 9 B. M., 259.

The fact that the defendant holds possession as servant of another person constitutes no
•defence. I Ch. PL, 194.

5. As to demand for possession or notice to quit.

(1) As to actual tenants, it seems to be unnecessary to consider what were the rules of
the common law, as the entire subject seems to be governed by the General Statutes, chap-
ter 66, article 1, g 1 and 2 ; article 4, and article 6, $ I, 2 and 3; the provisions of which
I need not repeat here

But neither the statute nor the common law requires a plaintiff to aver a demand for
possession or a notice to quit, in an action against a lessee who has sought protection under
the title of a third person (1 Mar., 181) ; or who has otherwise disclaimed holding under
the plaintiff. 2 Mar., 270; I Dana, 36; 4 Id., 79.

(2) As to quasi tenants.

The plaintiff must aver a demand or notice and refusal to deliver possession, in an
action against a quasi tenant; such as an agent (4 B. M., 605) ; or a purchaser holding
possession under a parol contract (I B. M., 232; 3 Id., 175, 547; 12 Id., 478; 15 Id., 72);
or under a written executory contract (7./../. M., 318: 4 Dana, 337) ; or under a decretal
sale which has not been perfected by a conveyance {Harrison v. Hard, 12 B. M., 471);
unless the quasi tenant has dissolved the relation between him and the plaintiff by claiming
to hold independently, or by some other act which would render his possession adverse (I
Mar., 181 ; 2 Id., 270; I Dana, 36; 4 Id., 79; 6 Id., 425; Farrow v. Edmonson, 4 B.M.,
•605 ; Bedford v. Thomas, 6 Id., 332) ; but the fact that a quasi tenant defends an action, on
the ground that there had been no notice or demand of possession, does not constitute an
adverse holding ( I B. M., 232); nor does non-payment of purchase-money. 7f.fM.,
320.

In order, however, to make a purchaser a quasi tenant, it must appear, or there must
'be reason to presume, that he entered into possession expecting a future conveyance of the
legal title: consequently, one who enters under a deed which purports to convey the legal



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CHAP. II.] IN ACTIONS ON STATUTORY CAUSES OF ACTION. Ill

title is not * quasi tenant {6 B. iff., 333) ; although the deed be void, and, consequently, the
defendant has acquired no title (Shackleford v. Smith, 5 Dana, 332; Isaacs v. Gearhart, I a
B. M. t 231 ; City of Covington v. McNickle, 18 Id,, 290) ; and in Venablt v. McDonald, 4
Ahm, 337, it was held that, though the defendant entered under a parol purchase, yet, if
it be shown that he and the plaintiff deemed the contract "an executed agreement," the
defendant can not be regarded as a quasi tenant,

a. As to the mode of giving notice or making demand.

The provisions of the General Statutes above referred to require notice to an actual
tenant to be in writing ; but, according to the common law, which alone applies to quasi
tenants, parol notice or demand is sufficient. Litt, S. C, 266.

b, As to the time which should be allowed to a quasi tenant for surrender of possession,
"Notice to the vendee should be reasonable. To make it so, it should be for six

months, and to expire at a season of the year when the possession could be surrendered
without doing him injustice. It would be unreasonable to require him to quit when he
had a growing crop, or when his crop, although matured, had not been gathered, or a



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