Griffin v. Lancaster
Mississippi Supreme Court
Appeal from the Circuit Court of Chickasaw County. Hon. J. A. Green, Judge. Replevin will not lie against a person not in possession of the property. Grrace v. Mitchell, 31 Wis. 533; Hall v. White, 106 Mass. 599 ; Richardson v. Reed, 4 Gray, 441; Haughton v. Newberry, 69 N. C. 456 ; Code 1871, §§ 1529, 1530, 1535. A plaintiff in execution has no right to possession.
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Appeal from the Circuit Court of Chickasaw County. Hon. J. A. Green, Judge. Replevin will not lie against a person not in possession of the property. Grrace v. Mitchell, 31 Wis. 533; Hall v. White, 106 Mass. 599 ; Richardson v. Reed, 4 Gray, 441; Haughton v. Newberry, 69 N. C. 456 ; Code 1871, §§ 1529, 1530, 1535. A plaintiff in execution has no right to possession. The appellee was entitled to the property, and the defendant could not escape liability for its unlawful taking and detention, by sending an officer who acted as his agent in making the seizure.
1Opinion of the CourtChalmers, C. J.
Mrs. Lancaster, whose property had been levied on under an execution against her husband, brought an action of replevin for its recovery, not against the officer in whose possession it was, but against the plaintiff in execution, in whose possession it was not.
The suit is not maintainable. It is essential in replevin that the defendant shall be in possession of the property sued for at the time of institution of the suit; and though trespass may be maintained both against the officer wrongfully seizing property of a stranger, and against the plaintiff in execution, the rule is otherwise as to…
2Cases cited4 opinions
- Allen v. CraryNew York Supreme Court · 1833
- Grace v. MitchellWisconsin Supreme Court · 1872
- Brockway v. BurnapNew York Supreme Court · 1851
- Bowen v. HutchinsSupreme Court of Connecticut · 1847
3Cited by4 opinions
- Gardner v. BrownNevada Supreme Court · 1894
- Ainsworth v. BlakeneyMississippi Supreme Court · 1957
- Scottsdale Ginning Co. v. LonganArizona Supreme Court · 1922
- Ainsworth v. SmithMississippi Supreme Court · 1930