
    Burnley v. Lambert.
    October Term, 1794.
    Detinue — What Plaintiff Must Prove. — In detinue, the plaintiff must prove property in himself, and possession in the defendant; but proof of possession anterior to the bringing of the action is sufficient, unless the defendant can show that he was legally dispossessed.
    Legacies — Assent of Executor — Rights of Creditors— Parties. — After the assent of an executor to a specific legacy, the property is changed, and a creditor obtaining a judgment against the executor, cannot levy an execution upon the property in the hands of the legatee. He may pursue the executor at Law, or follow the property in Equity, making all the legatees parties.
    Legatees — Execution on Property in Hands of — Title of Purchaser. — A purchaser, under the execution levied on the property in the hands of the legatee, acquires no title thereto.
    Judgment — Reversal—Effect as to Purchaser —A purchaser, under an execution issued on a judgment which is afterwards reversed, shall not have his title impeached; but the injured party shall be restored to the money arising from the sale.
    This was an action of detinue for slaves, brought in the District Court of Fredericks-burg. On the plea of non detinet, a verdict was found for the plaintiff, and an appeal prayed to this court, upon exceptions taken to the instruction given *to the jury by the District Court. The bill states. “That the defendant’s counsel moved the court to instruct the jury, that the possession of the slaves in question not being proved to have been in the defendant at the date, or service of the writ, the law was for the defendant; That it was proved by the defendant, he was out of possession of the slaves before the date or service of the writ, and at all times since; and that the only evidence of a demand, was the writ. But the court instructed the jury that it was not necessary to maintain the issue on the part of the plaintiff, to prove possession in the defendant at the date, or service of the writ, but that proof of possession at a day anterior thereto, namely, on the day mentioned, in the declaration was sufficient.
    “That it was proved, that the defendant purchased the slaves in question, belonging to the estate of John Jones, at a coronor’s sale, under an execution against the executors of the said John Jones,altho’ the defendant was warned by the plaintiff of his title to the property. That the plaintiff (who intermarried with one of the legatees of the said John Jones) had received from the executors (upon a division of the said estate) the negroes in question, the same having been devised to his wife, by the will of the said Jones. That the personal estate of the testator (independent of the negroes in question) was fully sufficient to have satisfied the execution, but that the same had been distributed by the executors amongst the different legatees. That the defendant moved the court to instruct the jury, that the sale was a compleat transfer of the property to the defendant. But the court instructed the jury, that such sale was not a transfer of the property to the defendant, to which opinions the defendant excepted.”
    Warden for the appellant.
    Detinue will not lie, where the defendant has parted with the possession of the property, before the commencement of the suit. There can be no stronger evidence of this, than the judgment in such action, which is to recover the property itself, and damages for the detention, which could not be, if the defendant had not the property to deliver. He cited Southcotes case 4 Rep. 83 — Bull. 49 — 51; the latter, to prove that the detainer is the gist of the action.
    But 2dly, The title of a vendee under a sheriff’s sale, cannot be questioned in any instance; for if it could, the inconvenience to the public would be indefinite, since no person would purchase from a sheriff, and thus executions, which are the life of the law, would be rendered entirely ineffectual. 3 Wills. 309, 1 Burr. 20 — 8 Co. 96 — Cro. El.
    278 — Cro. Jac. 246 — 5 Co. 90b.
    *Dtival on the same side, insisted, that in an action of detinue, it was incumbent upon the plaintiff to prove a demand, and that the record in this case, shewed that none had been made.
    Washington for the appellee.
    I will consider the last point made in the bill of exceptions first; and that is, whether the assent of the executor to a specific legacy, does not so compleatly vest the property in the legatee, and divest the executor of any legal right thereto, that it is not liable to be seised in execution to satisfy a judgment against the executor? This point has not been argued by the counsel on the other side, from a conviction, I presume, that it is too well settled to be now controverted. The creditor does not lose his remedy by this conduct in the executor; for he may either pursue the executor at law upon a devastavit, or follow the assets in equity against the legatees; and in this latter case, it would be essentially necessary to make them all parties, in order that they may all equally contribute to bear the burthen. But if the summary mode pursued by Burn-ley were permitted, suits in equity against legatees would never be heard of.
    It is contended that a sale by a sheriff of A’s property, taken under an execution against B, so compleatly divests the right out of A, that he cannot recover it in an action against the vendee. The case of Cooper and others v. Chitty and Backistcn, 1 Burr 20, cited by the appellant’s counsel, strikes me to be an authority as expressly against the doctrine, as could possibly have been brought forward. It would be monstrous if the law were otherwise. That case, as well as the others which have been cited, lay it down, that if the sheriff seize and sell, by authority, (as under a judgment which is afterwards reversed) the rightful owner is bound: but surely in the case just mentioned, or in the present, the sheriff does not sell by authority; because the writ, which is his warrant, directs him to levy the debt of the property of the testator in the hands of the executors.
    As to the first point, there is more difficulty in it. But it will bo sufficient for me to contend, that the defendant does not state upon the record a case sufficiently strong to bar the plaintiff, and of course the judgment ought not to be reversed. For tho’ there may be a case, where detinue will not lie against a person out of possession, yet there are many cases, where it may lie. Thus, it will not lie where the defendant is lawfully dispossessed 1 efote action brought. But it will lie as South-cote’s case proves, against a bailee, who is robbed before action brought, and in *other instances there mentioned. So if the,defendant make a fraudulent conveyance, or with a view to a secret trust, or indeed if he be dispossessed in any manner, unless by a legal recoverj', I am inclined to think that this action will lie. Since therefore the case stated in the exceptions for the opinion of the judge, is not such an one, as will in all instances render this action improper (and such a case I contend ought to have been made out, not a doubtful, or uncertain one,) I submit it, whether the direction was not proper and legal. The verdict in detinue being in the alternative, is evidence of the law being so.
    Marshall in reply.
    The pleadings are in general the best evidence of the law. Let us examine them. The declaration states a present possession and detention: the plea denies it in the present tense also, upon which issue the verdict is taken. Consequently, if the defendant be not in possession, or does not detain at that time, viz. at the time when the suit is brought, it is evident that this form of action is not sustainable. I admit that trespass or trover might lie. The direction of the judge is not such as is supposed by Mr. Washington. The exceptions do not state an uncertain case for the defendant, but the judge has, even upon Hr. Washington’s own ground, given an opinion clearly wrong. Eor he lays.it down generally in his instruction to the jury, “that it is not necessary for the plaintiff to prove possession in the defendant when the suit is brought, but that proof of an anterior possession is sufficient. ” He does not qualifj' the opinion by speaking of a fraudulent dispossession, or of such an one as, it is contended, will not preclude this form of action, but he lays down the principle generally, which is unquestionably erroneous, since it would even apply to a case of dispossession produced by a legal recovery, in whicli case, it is admitted, this action would not lie. It is true, the verdict is in the alternative; but this does not arise from the possibility that the defendant may have parted with the property, and therefore cannot deliver it specifically. There are other sufficient reasons for that; for the property might perish, or be disposed of after action brought; and in such a case, it would be hard if the plaintiff could not get the alternative.
    
      
      Detinue — What Plaintiff ilust Prove. — In the action of detinue it is necessary that the plaintiff should aver and prove that he has title to the property, with present right of possession in himself, and actual possession by the defendant anterior to the bringing of the suit. And if the plaintiff proves an anterior possession in the defendant the burden is shifted, and it devolves upon the latter to prove that he has been legally dispossessed. Burns v. Morrison, 36 W. Va. 424, 15 S. E. Rep. 63. citing Burn-ley v. Lambert, 1 Wash. 308. See also, citing the principal case upon this question, Austin v. Jones, Gilm. 353, 354 ; Lynch v. Thomas, 3 Leigh 694 ; Allen v. Harlan, 6 Leigh 43 ; Catlett v. Russell, 6 Leigh 361, 367 ; Arthur v. Ingels, 34 W. Va. 643, 12 S. E. Rep. 874 ; Williamson v. Ringgold, 30 Fed. Cas. 29 ; Woodruff v. Bentley, 30 Fed. Cas. 522 ; monographic note on “Detinue and Replevin” appended to Hunt v. Martin, 8 Gratt. 578.
    
    
      
      Legacies — Assent of Executor — Rights of Creditors— Parties. — In the second headnote of the principal case it is held that after the assent of the executor to a legacy, the property is changed, and a creditor obtaining a judgment against the executor cannot levy an execution upon the property in the hands of a legatee ; but he may pursue the executor at law, or follow the property in equity, making all the legatees parties. As bearing on this general subject, the principal case is cited in Woodley v. Abby, 5 Call 341; Lewis v. Bacon, 3 Hen. & M. 107 ; Gordon v. Justices of Frederick, 1 Munf. 17 ; Whitehorn v. Hines, 1 Munf. 585 ; Hopkirk v. Dennis, 2 Munf. 328 ; Gallego v. Attorney General, 3 Leigh 489 ; Nicholas v. Burruss, 4 Leigh 303 ; Burchard v. Wright, 11 Leigh 470 ; Davis v. Newman, 2 Rob. 667. The principal case is also cited in Hurst v. Morgan, 31 W. Va. 521,8 S. E. Rep. 291; Wilcocks v. Phillips, 29 Fed. Cas: 1201. See monographic note on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.
    
   The PRESIDENT.

The question is, whether the judge misdirected the jury upon both, or either of the points submitted to his opinion. If he did, then the verdict must be set aside, and a new trial awarded. A majority of the court are of opinion, that it was not a misdirection. Mr. Marshall’s argument, *drawn from a critical examination of the declaration, plea, and verdict, would prove too'much, and that gentleman knows the consequence. Eor it goes to shew, that the defendant must not only be in possession at the time of the writ issued, but that it must continue in him to the time of the plea, and indeed to the time of the verdict, all of them being in the present tense. The plea is the general issue, and leaves the whole merits of the case to be brought forward upon the trial.

We come next to inquire what is necessary for the plaintiff to prove in this action? The books agree that he must prove a title in himself, and possession in the defendant ; but as to the time at which the possession should appear to have been in him, whether at the date of the writ, or whether an anterior possession would be sufficient, the cases are totally silent.- — This court agrees with the District Judge in declaring that the latter is sufficient, for otherwise the plaintiff might by contrivance be kept in a perpetual round of suits without effect. Thus A. finds B. in possession of his slaves which are refused to be delivered; he sets off to the clerk’s office perhaps at a considerable distance for a writ. B. knowing of this, takes a witness to prove the delivery of possession to C. before the writ can issue ; upon the trial, and after a tedious prosecution of the suit, this fact is made to appear, and A is defeated. He then sues C. who plays the same game, and so on, as often as persons can be found to take part in the fraud. This can never be right, and proof of possession prior to the suit’ ought to charge the defendant, unless he be legally evicted, which it is incumbent upon him to shew.

As to the next question which arises from an objection to the plaintiff’s title, it requires very little consideration. It is true, that a testator should be just before he is bountiful; but if he can be both, who is to restrain him?. And who is the proper judge of this ability, but his legal representatives, who by delivering up a specific legacy, acknowledge that ability in their testator. — After the assent of the executor, the legal property is completely vested in the legatee, and cannot at law be divested by the creditors. The creditors have a double remedy 1st, against the executors at law, in which case the executors have their remedy in equity against the legatees, to compel them to refund; or 2dly, the creditors may in equity pursue the estate in the hands of the legatees; and in either case, all the legatees must be made parties, that the charge may not fall upon one, but may be equally borne by the whole. But if this direct mode against a particular legatee were permitted, it *would put it in the power of the creditor, to mark out the person who should in the first instance sustain the whole weight.

But a doctrine still more extraordinary was contended for at the bar: That the owner of the slaves in question lost his right thereto, by the seizure and sale of the coroner. Some of the cases, which were cited in support of this position, directly contradict it, and the others, such as Mathew Manning’s case, only state, that where a judgment is reversed, the execution and sale under it, shall not be avoided, having been lawfully made, under authority ; but that the party aggrieved shall be restored, not to the property, but to the money arising from the sale. But if an execution issue against the goods of A. and the sheriff seize and sell the property of B, will it be said that this is done by lawful authority, as in the other case? Surely not.

Judgment affirmed.  