Lapas attēli
PDF
ePub

doer who, at the time of judgment recovered, is still in possession of the chattel operates like the statute of limitations, and annihilates the dispossessed owner's right to recover the chattel. The converter's possession being thus set free from adverse claims, changes into ownership.

If the change of possession is before judgment, there is a difference. Let us suppose, for instance, that B. converts the chattel of A., and, before judgment recovered against him in Trespass or Trover, sells it to C., or is in turn dispossessed by C. C., the new possessor, will hold the chattel, as B. held it, subject to A.'s right to recover it. The change of possession simply enlarges the scope of A,'s remedies; for his new rights against C. do not destroy his old right to sue B. in Trespass or Trover. Nor will an unsatisfied judgment against B. in either of these actions affect his right to recover the chattel from C. Or the proceeds of its sale in an action of assumpsit. It is no longer a question of double vexation to one defendant for a single wrong. Not until the judgment against B. is satisfied can C. use it as a bar to an action against himself. A different principle then comes into play, namely, that no one should receive double compensation for a single injury.

Another case can be put where the dispossessed owner has concurrent rights against two or more persons. B. and C. may have jointly dispossessed A., instead of being successive holders of the converted chattel. Under these circumstances A. may proceed against B. and C. jointly or severally. If he obtain a joint judgment in Trespass or Trover, all his rights against both are merged therein, and his title to the chattel is extinguished. But if he obtain a separate judgment against one, he may still bring Replevin or Detinue against the other to recover the chattel, or Trespass or Trover for its value; for the latter cannot invoke the maxim, nemo bis vexari debet pro eadem causa." Not until the judgment against the one is satisfied can it be used as a bar in an action against the other. The controversy whether the title to a converted chattel vests in a defendant by a single judgment, or only after the satisfaction of the judgment, is, therefore, but another battle of the knights over the gold and silver shield. Under some circumstances the title changes by the judgment alone; in other cases satisfaction is necessary to produce that result.1

321. CHAPIN v. FREELAND

SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1886

142 Mass. 383, 8 N. E. 128

THIS was an action of replevin in which the plaintiffs alleged the taking and detention by the defendant of two counters as the property of the plaintiffs. The answer was a general denial, and averment of property in the defendant. Trial before Blodgett, J., without a jury, where there was evidence tending to show, and the Court found, that in 1867 one Daniel Warner built a building upon his land in Oxford, and fitted up the same with shelving and counters, and designed the same for use

1 [NOTES:

[ocr errors]

"Judgment in trover as bar to replevin for goods converted." (H. L. R., XVI, 131.)]

as a store for the sale of general merchandise; that the counters in controversy were put into the store by him; that the same were nailed to the floor, and used in said building; that January 2, 1871, said Warner conveyed the premises in mortgage to Alexander De Witt; that said De Witt died in 1879, and Charles A. Angell and William Newton were duly appointed executors of his will; that in April, 1879, said executors foreclosed said mortgage by sale under the power contained in said mortgage, and became the purchasers of the said premises; that soon after such sale said Warner removed said counters from the building, and the executors regained possession of them, and put them back in place upon the premises, but did not nail or fasten them to the premises; that afterwards the executors sold said premises to the plaintiffs, but did not make mention of said counters in their deed, nor speak of them in the sale; that the defendant took the counters from the premises occupied by the plaintiffs in 1881. The defendant offered evidence tending to show, and the Court found, that she purchased these counters in 1861; that they were built in Worcester, and sent to her complete at Oxford, and placed in her store; that they were heavy counters supported by standards standing upon the floor, to which they were not fastened, but kept in position by their own weight, and were used there until some time in 1866, when they were set one side as not being adapted for the business then carried on in the store, and finally, with the knowledge and consent of De Witt, were moved out of the building onto the street, and placed one upon the other; that said Warner took the counters from their place in the street, and put them in his store as aforesaid; that there were two mortgages on defendant's store premises given some time previous to November 26, 1866, which were assigned to said De Witt, November 26, 1866; that from that date, by agreement with the defendant, said De Witt, who was the defendant's brother, had charge of said estate and of said counters for the defendant; that she never authorized him, or any other person, to dispose of the counters which were removed from her store; she missed them, and made inquiries for them, but failed to find them; and that, when she learned they were upon the plaintiff's premises, she took them away. There was no other evidence than above stated as to the means of the defendant of obtaining information as to where the counters were after they were taken from her store, or as to any concealment of the taking of the counters by Warner. It was in evidence, however, that defendant, after 1861, resided some of the time. in Oxford and some in Sutton. There was no evidence, except as before stated, tending to show what interest, if any, Warner claimed to have in the counters at the time they came into his possession, or at any time thereafter; and there was no other material evidence in the case applying to the ruling made as asked at the trial. . . .

The plaintiff claimed, and asked the Court to rule, that upon this evidence. . . the defendant had lost the right to take the counters if said Warner had no right or title to them when he so took and attached them to the store building, such taking being a tort, and, as a cause

of action, barred by the statute of limitations long before the defendant removed them in 1881. . . . and that the facts in the case would not warrant a finding for the defendant. The Court declined to rule as requested, and found for the defendant, and the plaintiff alleged exceptions.

A. J. Bartholomew, for plaintiffs. John Hopkins, for defendant.

HOLMES, J. This is an action of replevin for two counters. There was evidence that they belonged to the defendant in 1867, when one Warner built a shop, put the counters in, nailed them to the floor, and afterwards, on January 2, 1871, mortgaged the premises to one De Witt. In April, 1879, De Witt's executors foreclosed and sold the premises to the plaintiff. The defendant took the counters from the plaintiff's possession in 1881. The Court found for the defendant. . . . We understand the Court to have ruled or assumed that although the statute would have run in favor of Warner or De Witt before the transfer to the plaintiff, that circumstances would not prevent the defendant from taking possession if she could, or entitle the plaintiff to sue her for doing so if she was the original owner. A majority of the Court are of opinion that this is not the law, and that there must be a new trial. We do not forget all that has been said and decided as to the statute of limitations going only to the remedy, especially in cases of contract. . . . What we do decide is that, when the statute would be a bar to a direct proceeding by the original owner, it cannot be defeated by indirection within the jurisdiction where it is law. If he cannot replevy, he cannot take with his own hand. A title which will not sustain a declaration will not sustain a plea.

It is true that the statute in terms only limits the bringing of an action. But, whatever importance may be attached to that ancient form of words, the principle we lay down seems to us a necessary consequence of the enactment. Notwithstanding the disfavor with which the statute of limitations was formerly regarded, all the decisions or dicta which we know of, directly bearing upon the point, favor or go beyond that prinple. Cockfield v. Hudson, 1 Brev. 311; Howell v. Hair, 15 Ala. 194; Jones v. Jones, 18 Ala. 248-253; Clark v. Slaughter, 34 Miss. 65; Winburn v. Cochran, 9 Tex. 123; Preston v. Briggs, 16 Vt. 124, 130; Baker v. Chase, 55 N. H. 61, 63; Campbell v. Holt, 115 U. S. 620, 623; s. c. 6 Sup. Ct. Rep. 209. And a similar doctrine has been applied to the statute of frauds. Carrington v. Roots, 2 Mees. & W. 248. See King v. Welcome, 5 Gray, 41.

As we understand the statutory period to have run before the plaintiff acquired the counters, . . . we regard a purchaser from one against whom the remedy is already barred as entitled to stand in as good a position as his vendor. Whether a second wrongful taker would stand differently, because not privy in title, we need not discuss. See Leonard v. Leonard, 7 Allen, 277; Sawyer v. Kendall, 10 Cush. 241; Norcross v. James, 140 Mass. 188, 189; s. c. 2 N. E. Rep. 946; Co. Litt. 1146, 1216. Exceptions sustained.

FIELD, J. (dissenting). I am unable to assent to the opinion of the Court. .

The second request, as applicable to the case, is in effect that if Warner took the counters tortiously, and kept them attached to his building more than six years, the defendant lost her right of property in the counters. . . . The effect of the statute of limitations of real actions upon the acquisition of title to real property is carefully discussed in Langdell, Eq. Pl. $119 et seq. Our statute of limitations of real actions (Pub. St. c. 196, § 1) provides that

"no person shall commence an action for the recovery of land, nor make any entry thereon, unless within twenty years after the right to bring such action, or to make such entry, first accrued, or within twenty years after he, or those by or under whom he claims, have been seized or possessed of the premises, except as hereinafter provided."

Gen. St. c. 154, § 1; Rev. St. c. 119, § 1; St. 1786, c. 13; St. 1807, c. 75; Commissioner's Notes to Rev. St. c. 119. . . . The effect of the statute has been to extinguish the right, as well as to bar the remedy, and this is the construction given to the English statute of 3 & 4 Wm. IV. c. 27. Our statute of limitations of personal actions was taken from St. 21 Jac. I. c. 16; and this statute has been held not to extinguish the right, but only to bar the remedy. Owen v. De Beauvoir, 16 Mees. & W. 547; s. c. 5 Exch. 166; Dawkins v. Lord Penrhyn, 6 Ch. Div. 318; s. c. 4. App. Cas. 51; Trustees of Dundee Harbor v. Dougall, 1 Macq. 317, 321; In re Alison, 11 Ch. Div. 284. Pub. St. c. 197, § 1, is that

"the following actions shall be commenced within six years after the cause of action accrues, and not afterwards: . . . Actions of replevin, and all other actions for taking, detaining, or injuring goods or chattels.”. There is no statute and no law prohibiting the owner of personal chattels from peaceably taking possession of them wherever he may find them. It is established in this Commonwealth that a debt barred by the statute of limitations of the place of the contract is not extinguished. The statute only bars the remedy by action within the juisdiction where the defendant has resided during the statutory period. Bulger v. Roche, 11 Pick. 36. . .

There is nothing in the statute which suggests any distinction between actions to recover chattels and actions to recover debts, and it does not purport to be a statute relating to the acquisition of title to property, but a statute prescribing the time within which certain actions shall be brought. There is not a trace to be found in our reports of the doctrine that possession of chattels for the statutory period of limitations for personal actions creates a title, and I can find no such doctrine in the English reports, or in the reports of a majority of the Courts of the States of the United States. . . . These cases show that the statute of limitations of personal actions is construed with reference to the particular action brought, and indicate that there is no change of title in property, although

the time for bringing an action of trover has expired. I think that the subject of the acquisition of title to personal chattels by adverse possession can best be dealt with by the Legislature if it thought necessary to establish such a rule of law, and that it was not the intention of the statute of limitations of personal actions to extinguish rights or titles.

There is much force in the suggestion that, if the defendant could not have recovered the counters by action, she ought not to be permitted to take them from the possession of the plaintiff by force or fraud; but it is not found in the case that she took them by force or fraud, and the request does not assume this, and I think that the defendant could have recovered these counters of the plaintiff by action, as the statute of limitations did not begin to run in favor of the plaintiff until 1881, when he took possession, and it is not found that the plaintiff's vendors had any title which they could convey to him. I think the second and third requests ought not to have been given.

322. JAMES BARR AMES. "The Disseisin of Chattels" (1890. Harvard Law Review, III, 23. Select Essays in Anglo-American Legal History, No. 67, III, 541.) Title by prescription was an important chapter in the Roman law. Continuous possession, in good faith, although without right, gave the possessor, after a given time, a perfect title. The civilians, as is shown by the requisite of bona fides, looked at the matter chiefly from the side of the adverse possessor. In England the point of view is different. English lawyers regard not the merit of the possessor, but the demerit of the one out of possession. The statutes of limitation provide, in terms, not that the adverse possessor shall acquire title, but that one who neglects for a given time to assert his right shall not thereafter enforce it. Nevertheless, the question of bona fides apart, there is no essential difference between the two systems on the point under discussion. In the English law, no less than in the Roman law, title is gained by prescriptive acquisition. As a matter of legal reasoning this seems clear. For, as already pointed out, the only imperfection in the disseisor's title is the disseisee's right to recover possession. When the period of limitation has run, the statute, by forbidding the exercise of the right, virtually annihilates it, and the imperfect title must become perfect.

This conclusion is abundantly supported by authority from Bracton's time down: "Longa enim possessio. . . . parit jus possidendi et tollit actionem vero domino petenti, quandoque unam, quandoque aliam, quandoque omnem,

Sic enim. . . acquiritur possessio et liberum tenementum sine titulo et traditione, per patientiam et negligentiam veri domini." 2

Blackstone is even more explicit: "Such actual possession is prima facie evidence of a legal title in the possessor; and it may, by length of time, and negligence of him who hath the right by degrees, ripen into a perfect and indefeasible title." " Lord Mansfield may also be cited: "Twenty years' ad

1 The writer regrets to find himself in disaccord upon this point with the opinion expressed incidentally by Professor Langdell, in his Summary of Equity Pleading (2 ed.), § 122.

2 Bract. 52 a.

* 2 Bl. Com. 196; see also 3 Bl. Com. 196; 1 Hayes, Conveyancing (5 ed.), 270; Stokes v. Berry, 2 Salk. 421, per Lord Holt.

« iepriekšējāTurpināt »