Stapleford v. White — 6 Del. 238

Majority

p. 238

William Stapleford v. George P. White, Sheriff.

Headnote

The remedy by action of replevin, pursuant to the statute, Rev. Code, 379, 380, does not extend to the case of a seizure by the sheriff, under execution, of goods in the possession of a third person, under a contract of renting or hiring them of the plaintiff at a certain price per year, to be returned on reasonable notice in good order, without notice from the plaintiff terminating the contract and requiring the return of the goods.

Replevin for certain 'household goods and furniture, seized and taken in execution by the defendant as sheriff, as the property of Rutter L. Davis, on sundry writs of testatum fieri facias, from the Superior Court for Kent County, at the suit of several judgment creditors, against Andrew J. McColley and Rutter L. Davis. The goods had been previously sold as the property of Davis by Sheriff Green, of Kent County, on judgment and execution process, at the suit of other parties, against McColley and Davis, and were bought at the sale by William Stapleford, the plaintiff", he being the highest and best bidder therefor, who paid the sheriff and took a bill of sale from him for them. It also appeared in evidence, on behalf of the plaintiff, that after the sale the goods remained in the possession of Davis, under an agreement in writing between him and the plaintiff, to pay the latter ten dollars a year for the rent or use of them, to be returned after reasonable notice, in as good order as circumstances would admit of.

E. D. Cullen, for the defendant,

moved to nonsuit the plaintiff. This is an action of replevin by Stapleford, the

p. 239

plaintiff, against the sheriff, for goods shown to be at the time of the taking in the rightful and lawful possession of another, under a contract of hiring or renting for an indefinite term, and there was no proof of notice to Davis to return them to the plaintiff, which would have terminated it. Under such circumstances the plaintiff had nothing more than what may be termed a reversionary interest in the goods, without a right to the immediate possession of them, and therefore he could not maintain an action of replevin for them. Davis had an interest and property in them under the contract of renting, which was liable to seizure and sale on an execution against him; and the plaintiff’s remedy, if he had any, was by an action on the case, and not by replevin. 1 Ch. Pl. 62; 10 Eng. C. L. R. 477; 7 T. R. 9; 3 Campb. 186; 15 Pick. 63 ; 21 Eng. C. L. R. 390; 3 Denio, 79 ; 3 Pick. 254 ; 3 Sandf. Rep. 52 ; 3 Hill, 576 .

C. S. Layton, for the plaintiff:

The cases cited are all good at common law, and would be good here but for the provisions of the statute, Rev. Code, 379, 380; the object of which is to extend the remedy of replevin, and the specific recovery which it affords at common law, not only to a wrongful taking, but to a wrongful detention also, and to give redress by this method, more particularly against an officer taking goods on execution for the wrongful detention of them against the demand of the rightful owner of them, in order that he may have them restored to him in specie. Perry v. Foster, 3 Harr. 293 . The Court will observe that, under the provisions of the statute, Davis could not bring the' action, because he was one of the defendants in the execution under which the goods were seized by the defendant as sheriff; .and therefore, to give the statute the construction contended fqr on the other side, would be to deny the remedy by replevin in a case like this altogether.

The motion must prevail, and the plaintiff"

p. 240

must be nonsuited. The provision of the statute, expending the common law remedy by the action of replevin to cases of wrongful detention, as well as wrongful taking, does not reach or affect this case, as the plaintiff neither had nor was entitled to the possession of the goods at the time of their seizure by the sheriff under the execution, nor at the timé when they were replevied by him; for, without notice terminating the contract of renting or hiring between him and Davis, and requiring the return of the goods to him, pursuant to the agreement, there was no wrongful detention by the defendant of the goods. There was, consequently, no wrongful taking and no wrongful detention of the goods from the plaintiff at the time of the commencement of the action, and he must be nonsuited.

Cases cited

Perry v. Foster 3 Harr. 293 Del. Super. Ct. p. 239