Robinson vs. Calloway, 4 Ark. 94

By the Court, Lacy, J. It is perfectly clear, under our revised statutes, page 659, that this action may be maintained for an unlawful taking, or a wrongful detention of a personal chattel. The plaintiff, to support the action, must show title: he has no right to a recovery unless he has been injured, either by an invasion of his right of property or his right of possession. The pleadings in the action are peculiar, but they are nevertheless founded in justice and policy.

In this case, the defendant pleaded “ non-detinet,” and “ property in himself and other persons.” Issues were formed upon these pleas: the inquiry now is, what are the parties respectively bound to prove ? The declaration alleges title in the plaintiff. This is a material fact; and when the issue is joined upon it, must necessarily decide the cause. When the defendant pleads any matter inconsistent with this averment, as property in himself or in a stranger, of course he is compelled to conclude with a traverse cf the plaintiff’s title.

The point upon which the issue is joined, and upon which the jury must pass, is, whether or not the plaintiff has such a title to the property as will enable him to maintain the action. The allegation of the defendant, of properly in himself, or in a third person, is merely inducement to the traverse of the plaintiff’s title, and, therefore, no issue is formed upon that fact. The plaintiff is not at liberty to waive the issue of his own title, and tender a traverse of the defendant’s title.

To admit him to do this, would be to establish a rule in pleading that would run contrary to all established precedents, and produce endless prolixity. In replevin, as in all other actions, it must appear by the declaration, that the plaintiff is the injured person. It would be idle to charge the defendant wit'h .unlawfully taking or detaining the plaintiff’s property, unless he had title.

The possession of a chattel interest carries with it the presumption of ownership or right of possession; and neither of these can be interrupted or disturbed, unless the party claiming it shows that he has a superior, paramount title. The authorities are full and conclusive upon this point. 1 Saund. 22, n. 2; 1 Chitty, 592; Com. Dig. Plead. S. 14; Lady Chichesly vs. Thompson, Cro. Car. 4; Rogers vs. Arnold, 12 Wend. 33. In Prosser & Petrie vs. Woodward, 21 Wend. 207, the whole doctrine will be found fully examined and decided in exact conformity with the principle here stated.

These principles clearly show that the plaintiff was not entitled to recover, unless she showed title, in herself, and that the defendant could defeat the action by establishing it in another. The plaintiff was bound to recover by the strength of her own title, and not by the weakness of her adversary’s. She held the affirmative of the issue; and, unless she proved her own title, she had no right to recover. These principles are perfectly obvious, and their application to the instructions given to the jury by the Judge who tried the cause proves he was mistaken in regard to the Jaw governing the case before him.

The facts contained in the record, so far from proving title in the plaintiff, expressly disprove the claim. The Court instructed the jury, that, “ under the issues joined, if the defendant proved property in a third person, other than hfmself, he was bound to show that he derived a valid title from that third person, in order to defeat the plaintiff’s right of action.” This instruction was evidently erroneous, and expressly contradicts all the established rules of pleading upon the subject, and also our own statute. Rev. St. sec. 34, p. 664.

The Court refused to instruct the jury that “ if they believed, from the evidence, that the title to the slave in dispute, was in the estate of John Calloway, deceased, the plaintiff had no right to recover.” In refusing to give this instruction, the Court also erred. It is perfectly manifest, that if the administrators, or the heirs of John Calloway, deceased, had title to the property, an action could not be maintained alone in the name of the widow.

The plaintiff’s right to recover, depended upon her title; and if the proof showed the title out of herself, and vested it in others, yhe certainly could not maintain the action. The whole proof in the cause, in our opinion, clearly established these facts: The slave mentioned in the declaration, is shown to be the property of John Calloway, in his lifetime, and that the plaintiff in the action, is his widow; that, upon his death, he left a number of children, several of whom are now living; and that Amy Calloway, with John S. T.

Calloway, administered upon the estate of her deceased husband; that there was no legal distribution of the assets of the estate among the heirs or representatives; that, after the death of John Calloway, the plaintiff retained possession of the slave; that he was considered and called her property; and that she exercised acts of ownership over him, until a short time before the Commencement of this suit, when he passed into the possession of the defendant. This evidence, so far from establishing title in the plaintiff, clearly negatives any such idea.

As the wife of John Calloway, she held no property separate and apart from her husband, during her coverture. That, upon his death, she was only entitled to her distributive share of his estate; and the fact of her claiming the boy as her own property, and its being so regarded by others, could not vest in her either a legal or equitable title. She brings this suit in her own name, and rests her claim upon her own title and interest. By her own showing, she has no title or pretext of title.

If the property belonged to the estate of John Calloway, at the time of his death, then it must either have vested in his administrators, or in his legal heirs and representatives. , If the administrators had title, they of course should have both joined in the action. If their right to the property, or to the possession of it, had been divested by distribution, or otherwise, then the action would only lie in the names of the heirs or legal representatives, or in the names of those in whom the legal interest was vested.

Here, Amy Calloway’s title rests upon the mere assertion of a naked right, without title, accompanied with possession; which is not shown to be adverse to the other heirs or legal representatives: and, of course, having established no separate right or claim in herself, she is not entitled to a recovery. This view of the case supersedes the necessity of our examining or deciding the other points raised upon the record, with regard to the defendant’s proof.

Amy Calloway, having shown no title, according to the doctrine well settlled in actions of replevin, she is not then authorized to disturb the possession of the defendant. Judgment reversed.