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Declaration in detinue for title deeds. Plea, that the deeds were Detinue. entrusted to and deposited with the defendant by one G., deceased; Title deeds. that the plaintiff claimed the right to the possession of them as devisee Devisee. under the will of G. ; that the detention was a loss of them by the defendant before the death of G., and that the defendant never had possession of them since the death of G. On demurrer to this plea : Held by Wightman J., that the plea was bad, as it did not allege that the deeds were destroyed; and, therefore, assuming that they were still existing, and as the property in them was vested by the devise in the plaintiff, he might maintain detinue: Held, by Blackburn J., that the plea was good, as it did not admit that the defendant had possession of the deeds since they were the plaintiff" s.

ETINUE.-The declaration alleged that the de

fendant detained from the plaintiff his title deeds of certain messuages, or tenements, and land, at a place called Windmill Row, in the borough of KidderVOL. II.

B. & s.

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minster, in the county of Worcester, that is to say, a counterpart of a lease, dated the 28th November, 1796, made between Edward Davis, and Sarah, his wife, of the one part, and James Jauncy of the other part ; a certificate of redemption of land tax; and a chirograph of a fine, of and relating to the said messuages or tenements, and land; and also a document in writing, being an undertaking given and made by one Mr. Bradland, relating to the said messuages or tenements and land; whereby the plaintiff was prevented from selling or mortgaging the same, as he otherwise would have done : and he claimed a return of the deeds, or their value, and 501. for their detention.

Plea: That the deeds in the declaration mentioned, were entrusted to and deposited with the defendant by one — Goodman, deceased, and that the plaintiff claimed the right to the possession of the deeds as devisee under the last will and testament of the said - Goodman, and never had any other interest in the deeds. It then averred that the detention in the declaration mentioned was a loss by the defendant of the deeds, so deposited with him as aforesaid, before the death of the said — Goodman, and that the defendant had never had possession of the deeds since the death of the said — Goodman.

Demurrer and joinder.

The demurrer was argued at the sittings in banc, after Michaelmas Term, 1861, on the 27th November, before Wightman and Blackburn JJ. (a).

Montague Smith (H. Cole was with him), in support of the demurrer. The plea affords no answer to the

(a) The argument is reported by H. Holroyd, Esq.

1862. GOODMAN G

Boycott.

declaration. The property in the deeds accompanies
the title to the land, and passes with the land to the de-
visee; and their loss is in the nature of damage done to
the land. By analogy to the cases of covenants which
run with the land such as covenants to repair, which
pass with the reversion to the heir or devisee, this action
is maintainable. The breach of covenant in those cases
is a continuing breach where the cause of action is
continuing. In King v. Jones (a) an action was
brought by the plaintiff, as the heir of his father,
against the defendant, as executor of Richard Griffith,
upon a covenant of the testator to do all lawful and reason-
able acts for further assurance, upon request; and it
was held that the covenant was one running with the
land, and that the heir might recover. In Kingdon v.
Nottle (6) it was held that an action by the plaintiff, as
executrix of Richard Kingdon, against the defendant,
for a breach of covenant to make a good title, could not
be maintained without shewing some special damage
to the testator in his lifetime, or that the plaintiff
claimed some interest in the property. Lord Ellenborough,
in the argument of the case, says, p. 362, “ It has been
a sort of maxim in the law that an executor so far
represents his testator as to be entitled to maintain an
action in respect of all personal contracts made with the
testator and broken in his lifetime; but, from Co. Lit.
and the other authorities which have been cited, it should
seem that, in contracts relating to the freehold, the
executor does not represent his testator quite to that
extent. And if the present action could be maintained
this inconvenience would certainly result from it, that

(a) 5 Taunt. 418; affirmed in error, 4 Mau. & S. 188.
(6) 1 Mau. f: S. 355.

1862.

GOODMAN

v. Boycott.

the executor, who could recover only nominal damages, would thereby preclude the heir, who is the party actually damnified, from recovering at all, for I am not aware of any case in which an action has been holden to be maintainable by the heir after a former recovery by the executor.” In the present case the person damnified is the devisee; he has the land, and if he wishes to sell it he may be most seriously inconvenienced by the loss of the title deeds : it would appear, therefore, that he is the person who ought to sue for the loss, and not the executor. In Williams on Executors, p. 715, 5th ed., the author, in treating of actions upon covenants real, lays it down, “if such a covenant had been broken in the lifetime of the testator, or intestate, it should seem, according to the old authorities that the rule was that the executor or administrator might sue upon it," and he cites a passage from Com. Dig. in support of such rule; but in p. 716 he adds, “this rule, however, has been directly qualified by the decision of Kingdon v. Nottle, followed by that of King v. Jones, in which cases it was held that where there are covenants real, that is, which run with the land, and descend to the heir, though there may have been a formal breach in the ancestor's lifetime, yet, if the substantial damage has taken place since his death, the real representative and not the personal is the proper plaintiff.”

Then the loss of the deeds, which, for aught that appears to the contrary, is through the defendant's own default, is no answer to an action of detinue. Williams J.; in his judgment in Reeve v. Palmer (a), says: “All the authorities, from the most ancient time, shew that it is no answer to an action of detinue, where

(a) 5 C. B. N. S. 84–91.

a demand is made for the redelivery of the chattel, to say that the defendant is unable to comply with the deman:1 by reason of his own breach of duty."

1862. Goor GOODMAN

BOYCOTT

Hutton, contrà.—The plaintiff, in order to maintain detinue, must shew either a privity by bailment between himself and the defendant, or that he had a right to the possession of the deeds when he brought the action. Here there could be no contract of bailment between the plaintiff and the defendant, and, the loss having occurred in the lifetime of the testator, occurred before the plaintiff had any property in the deeds. Reeve v. Palmer (a) only decides that the plea here would be no answer to the action if it had been brought by the plaintiff's testator. It is clear that the testator in his lifetime could have maintained an action against the defendant; and if he recovered judgment, the judgment would have been that he recover the deed or damages for its detention; and if the testator had sued in his lifetime, and then died, the damages would have gone to the executor. In Br. Ab. tit. Sci. Fa. pl. 190., it is laid down: Si home recover fait concernant enheritance per briefe de detinue, et damages de v. liv. si le fait soit de estre redelyver, et si le fait ne soit destre redelyver tunc, xx. liv. damages et devy, et per opinionem Curie lexecutors navera execution des damages devant que l'heire ad scire facias pur le fait, et distringas ad deliberandum factum, et si le viscount retorne quod charta perdita vel combusta est, donques l'executors avera scire facias del damages et non ante, quod nota, et in plea real le heire avera execution del terre, recover per son auncestor, et les executors averont scire facias des damages et costes, quod nota.” Suppose the

(a) 5 C. B. N. S. 81-91.

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