Lamotte v. Wisner

Robinson, J., delivered the opinion of the Court. This is an action of replevin brought by the appellee to recover certain cattle found in the possession of the defendant. The defendant, now appellant, pleaded: 1st. Non cepit. 2nd.

Property in George W. Stocksdale, as bailiff. 3rd. Property in Benjamin I. Worthington. 4th. That the plaintiff had no property in the cattle. At the trial the plaintiff proved, that the cattle in question formerly belonged to one Beñjamin Worthington; that in May, lSll, they were driven by him from his farm in Baltimore County to the farm of the plaintiff in Carroll County and there sold to him; that after said sale they were taken from the possession of the plaintiff, and put in the possession of the defendant.

The defendant, on the other hand, proved that on the 26th of January, 1877, the cattle were taken under a distress for rent due by the said Benjamin Worthington to Benjamin I. Worthington, that they were left in the possession of the tenant at his request, and upon the faith of an agreement by him to pay the rent on or before the first day of May following, and upon his failure to pay at that time, the cattle were to be sold under the distress. Evidence was also offered to show that the plaintiff was not a bona fide purchaser'without notice. ⁵⁵⁹ There can be no difficulty-, we think, in regard to the well settled principles by which the several questions presented by the record are to be determined. At common law the landlord had no right to sell property taken under a distress, but was obliged to keep the same as a pledge until it was redeemed by the tenant. The power to sell was first conferred by Statute 2 William & Mary, and under its provisions, distress soon became a speedy and efficient remedy for the collection of rent.

The statute provided that unless the tenant or owner replevied the property within five days after the distress and notice thereof, the person distraining was authorized to have the distress appraised, and after such appraisement to sell the same towards the satisfaction of the rent and expenses incident to the distress. Now in this case the property was left in the possession of the tenant unsold at his request, and upon his agreement to pay the rent on or before a day named, and as between him and the landlord, it remained subject to the lien acquired under the distress. If, however, the landlord permitted the cattle to remain in the possession of Benjamin Worthington, the tenant, for an unreasonable length of time, without making a sale under the distress, namely, from the 26th of January to the first of May following, and they were then driven by the tenant from the farm occupied by him to the farm of the appellee, and were there purchased by him, without notice of the distress, we-are of opinion that the landlord’s lien cannot be enforced to the prejudice of the rights of the appellee as a bona fide purchaser. On the other hand if the cattle were not sold to the appellee, but merely left in his possession by the tenant, they still remained subject to the lien acquired by the-landlord under the distress.

The main question, therefore, in this case, is, whether the appellee was a bona fide purchaser without notice. ⁵⁶⁰ There was no error however, in the refusal of the defendant’s first and second prayers. Replevin may be maintained in this State, not only for the unlawful taking but also for the unlawful detention of property. And although the cattle may have been taken from the possession of the appellee by a constable of Carroll County, or by other persons and delivered to the possession of the appellant, yet, if the latter refused to deliver them to one who was entitled to the immediate right of possession, an action of replevin would lie. Nor was there any error in