Dearing v. Ford.

There was no evidence of demand and refusal, and even trover could not have been maintained. 2 Saund. Pl. & Ev. 883; 6 Johns. R. 44; 7 Porter, 279; Ib. 466.

Three things were necessary to sustain the proceedings: 1st. To prove that plaintiff was legally entitled to the immediate possession of the property; 2d. That it was "wrongfully detained" by Dearing; 3d. That the right of action accrued within one year. Hutch. Code, 817, 818.

The common law action of replevin will not lie unless there has been a tortious taking. Wheelock v. Cozzens, 6 How. 279; 7 Johns. R. 143; 16 Mass. R. 147; 2 Sand. Pl. & Ev. 759; 4 Bing. R. 299; 1 Mason, 322; 15 Mass. R. 359; 17 Ib. 606; 1 Miss. 345; Breese, 130; 2 Blackf. 415; 12 Wend. 32; 1 Ib. 112; 2 Murphy, 357.

Under the New York statute, it has been decided, "that replevin in the cepit will only lie where an action of trespass might have been maintained, but, in the detinet, after demand and refusal." 3 Hill, 282; Ib. 348; 19 Wend. 498. Also, that a demand and refusal is not necessary to be proved where the taking was wrongful. 3 Hill, 282; 6 Ib. 613; 1 Denio, 329.

The Massachusetts statute is much broader than ours, but it is necessary to prove a demand and refusal even in that state. The words of the statute are, "when any goods and chattels may be taken, distrained, or attached," &c. The word "wrongful" is not used. 15 Mass. R. 363. "The statute has greatly extended the remedy." 17 Ib. 610.

In order to maintain replevin, the plaintiff must have a right to have delivery of the property at the time of the issuing of the writ. 3 Hill, 577; 3 Pick. R. 255, 258; 15 Mass. R. 310; 15 Pick. 63.

2. The verdict of the jury assessed the value of the property in gross; and on the next day of the term, and after the jury had been discharged, the jurors were called back, and the case was again submitted to them.

It was irregular to call the jury together again, after having rendered their verdict, and after being regularly discharged; and the evidence was illegal.

Dearing v. Ford.

L. E. Houston, on same side, contended that,

In actions of trover, where property comes rightfully into the possession of defendant, the detention never becomes tortious until demand has been made, unless some act of ownership has been assumed, amounting actually or constructively to a conversion. See 1 Chitty's Pleadings, 179; 7 Porter, 279; Ib. 466, and authorities there referred to. But it has been decided expressly, both in New York and Massachusetts, that demand is necessary to make the "detention wrongful," and to enable a party to maintain an action of replevin in the detinet, where the property originally came rightfully to the possession of defendant. See the case of Barrett v. Warren, 3 Hill, Rep. 348; Cummings v. Vorce, Ib. 285; Pierce v. Van Dyke, 6 Ib., 613, 614, 616, Justice Bronson's Opinion; also, Hale v. Clark, 19 Wend. 498; Boughton v. Bruce, 20 Ib. 234; also Badger v. Phinney, 15 Mass. Rep. 359; Gates v. Gates, Ib. 311.

2. We contend, that the jury, after having rendered their verdict, and been discharged and dispersed for several hours, could not be called back and made to amend their verdict in matter of substance. See Walters v. Junkins, 16 Serg. & Rawle, 414; Little v. Larrabee, 2 Greenl. 37; Graham's Practice, 661; 7 Cowen, 29; Prussel v. Knowles, 4 How. 90; Walker v. Commissioners, &c., 1 S. & M. 372. If the jury failed in the first instance to find the price or value of each negro separately, as they should have done, the verdict could only be amended, by the court awarding a writ of inquiry, and empanelling a jury for that purpose, which it should have done, and let legal testimony have been properly brought before them on that point. See Hutch. Miss. Code, 849.

Other points touching the testimony were made by counsel for plaintiff in error.

Lindsay and Copp, for defendant in error, insisted,

1. That no demand was necessary before action brought; the writ was demand enough. 7 Port. 279.

2. That there was no error in allowing the jury to come back

Dearing v. Ford.

and amend their verdict. 7 S. & M. 45; Graham, New Trials, 91, 92.

Mr. Justice CLAYTON delivered the opinion of the court.

This is an action of replevin for the wrongful detention of certain slaves. It is insisted that the action will not lie, unless there was either a tortious taking, or a detention after a demand, which would make the detention wrongful, if unauthorized by law; in other words, that there should have been a demand before suit brought.

The words of the statute are, that "whenever any goods or chattels are wrongfully taken or detained, an action of replevin may be maintained, by any person having the right to immediate possession, for the recovery thereof, and for the damages sustained by reason of such wrongful taking or possession." Hutch. Code, 817.

We do not think the demand is essential to the recovery; for if the plaintiff is entitled to immediate possession, the detention by the defendant is wrongful. If, however, no demand be made before the institution of the suit, and the original possession of the defendant were lawful, he may tender the property to the plaintiff, and, upon its delivery by proper plea, discharge the action. The plaintiff might even be adjudged to pay the costs. But if, instead of this course, he denies the right of the plaintiff, and contests the action upon its merits, he cannot, after a verdict against him, defeat the recovery on the ground that there was no demand. The writ is a demand, and defending the suit is a refusal. We have adoptod this rule in the construction of the statute in regard to writs of forcible entry and unlawful detainer. Rabe v. Fyler, 10 S. & M. 446. There is so much similarity between the two statutes, as to justify the same interpretation.

The only other point we shall notice, is in regard to the verdict itself. On the first finding, the separate value of the slaves was not assessed. The jury was discharged, and on the next day the same jury was recalled, further evidence submitted to them, and another verdict, assessing the separate value of each, returned.

Feemster v. May.

This course was not warranted. Prussel v. Knowles, 4 How. 90, carries the practice upon this head as far, probably, as it ought to go. In that case, the whole jury had not left the court room; one of the jurors discovered a mistake in the verdict as rendered, and, upon making it known, the others were called in, agreed that the mistake existed, and the verdict was thereupon corrected. The case of Cogan v. Ebden, 1 Burr. 383, proceeds upon the same principle, that where there is a mistake in rendering the verdict, so that, as delivered, it does not conform to the real finding, it may be amended. The present case goes much further, and permits in truth a new verdict, upon new testimony, to be rendered. To this extent the practice cannot be sustained. In an action of detinue, where the verdict omits price or value, the court by our statute may award a writ of inquiry to ascertain the same. Hutch. Code, 849. Hutch. Code, 849. Were we to hold that this statute extended to actions of replevin, on which we now give no opinion, still it does not at all appear, that the proceeding had any reference to this statute.

The other points in regard to the evidence may probably all be obviated at the next trial.

Judgment reversed, and new trial awarded.

JAMES B. FEEMSTER vs. Joseph May.

A vendee who is in possession of land under a bond for title, but who has not accepted from his vendor a deed with covenants of warranty, can, without eviction, set up a failure of consideration from defect of title in defence of an action by the vendor for the purchase-money: aliter, if he has accepted such deed.

Where a bond for title, on payment of the purchase-money, is given, the covenants are dependent, and the vendee cannot be forced to part with his money until the vendor be ready to make title.

A covenant to make "a good and perfect deed" is not complied with by making a deed good in form only; the title must be good, to satisfy the undertaking.

Feemster v. May.

IN error from the circuit court of Noxubee county; Hon. Armstead B. Dawson, judge.

This was an action of assumpsit, founded on a promissory note, the consideration of which was part of the purchase-money of a certain tract of land sold by Joseph May to James B. Feemster. The defence to the note was a failure of consideration, to prove which the appellant introduced a bond given him by the appellee, conditioned that, as soon as the notes should be fully paid, (there were two notes, one of which had been paid before the institution of this suit in the court below,) he would make the appellant a good, clear, and sufficient title to the land; and also introduced proof to show that the plaintiff did not have a good title to the land. The court was then asked to instruct the jury that, to enable the plaintiff to recover, he must be able to make the defendant a good, clear, and sufficient title to the land in the title-bond mentioned. This instruction the court below refused to give, and that refusal is now assigned as error.

A. W. Dabney, for the plaintiff in error.

A want of title in May, and, as a consequence of this want of title, his inability to comply with the stipulations of his bond to Feemster, was established. Was he, then, entitled to the purchase-money? He was not. The covenants in this bond are dependent, and May's right to enforce payment of the note depended upon his ability to make Feemster a good title. In the case of Peques v. Mosby, 7 S. & M. 340, there was a bond, conditioned to make title, when the last note given for the purchase-money should be paid. The title in that case was not to be made until the money was paid, and yet the court decided that the covenants were dependent, and that the plaintiff had no right to enforce payment of the note, if it was clear that he could not make the defendant a good title. The condition of the bond in that case is similar to the condition of the bond in the case at bar. They are substantially the same.

The fact that the plaintiff in error was still in possession of the land, did not authorize the circuit court to exclude the defence. Eviction was not necessary, as there was a total failure of the consideration.