Drumgoole v. Lyle , 30 Pa. Super. 463 ( 1906 )

Opinion by

Henderson, J.,

Replevin is the appropriate action whenever a person claims goods in the possession of another, without regard to the manner in which the possession was obtained. The question is one of property, either general or special, and right of possession. The act of March 21, 1772, 1 Sm. L. 870, provided a new practice to work out the rights of landlords and tenants in the case of a replevin after a distress for rent, but this does not confer upon the court the power as to the action itself. The Act of April 19, 1901, P. L. 88, does not except from its operation any action of replevin distinguishable from others because of the particular facts out of which it arises. None of its sections suggests a substantial implication that it was not intended to apply to writs issued by tenants against landlords in cases of seizure for rent. The title; the provisions for giving a bond before the writ goes out; for the service; for the admission of intervening parties ; for the filing of a declaration under oath and an affidavit of defense clearly indicate that the statute was intended to provide a convenient practice under which the righfs of all parties interested in the property might be worked out. It is provided by the sixth section that the declaration and affidavit of defense shall constitute the issue under which the question of title and right of possession as between all the parties in interest shall be determined by a jury. The same section confers upon the court the power to take a conditional verdict where any party is found to have only a lien upon the goods and to enforce the same in accordance with equitable principles. The twelfth section authorizes courts of common pleas to make rules governing the proceedings under the act. These provisions are broad enough to cover actions between tenant and landlord and make possible an expeditious and practical determination of issues raised by the pleadings. If the mode of procedure and logical order of the introduction of the evidence be regarded, it will not be found to be more difficult to determine the rights of the parties in an action of replevin after a distress for rent than in a similar action where a bailment of the property is involved.

What, then, must the plaintiff set forth and what is the order of procedure ? The statute requires that the declaration shall consist of a concise statement of the plaintiff’s demand, setting forth the facts on which his title to the goods and chattels is based. This has evident reference to the facts relating to his acquisition of the property and conditions which entitle him to its possession. Possession usually follows title and an affirmation of absolute ownership or a qualified property with the circumstances of such qualified proprietorship would ordinarily be sufficient to present a prima facie case in favor of the plaintiff. If the plaintiff’s title be clearly and fully set forth with an averment of wrongful dispossession the defendant must meet this prima facie showing by setting forth in his affidavit of defense facts sufficient to justify his retention of the property. This is not only the logical method of forming an issue and of developing the grounds upon which a verdict must be based but it is the express requirement of the act. Within fifteen days after the filing of the declaration the defendant must file an affidavit of defense setting up the facts, denying the plaintiff’s title and showing his own title. The burden is placed upon him of showing either that the ownership set up by the plaintiff does not exist or that if the plaintiff be the owner that he is nevertheless not entitled to possession by reason of a lien or other facts sufficient to justify the defendant’s possession. It is not necessary that the plaintiff anticipate the defense which may be set up and traverse it; to do so would tend to confusion and reverse the logical order of proof. The plaintiff may not, and is not bound to, know what justification will be presented by the defendant. If he set forth an absolute or qualified property and the facts upon which his title is based, the defendant must reply by averment of matters sufficient to establish his title or to justify his possession. An issue is thus made up under which the court and jury will determine the rights of the parties. If the plaintiff in his declaration suggest the reason for the defendant’s course of conduct in taking the property the order of proof is not thereby changed. He has gone further than the exigency of the situation required and it is not his duty to reply to the position which he believes the defendant will assume. By so doing the declaration would become an affidavit of defense to an affidavit of defense and the procedure prescribed by the act of 1901 would be reversed. The plaintiff has not admitted in his statement that the seizure was a distraint for rent. There is merely the averment that, so far as the plaintiff has been able to understand, the defendants justify their action on the ground that the plaintiff was a tenant and there was rent in arrear. The assumption of the demurrer that the proceeding was a distress for rent does not bring the fact of a seizure for rent into the plaintiff’s statement; nor can the sufficiency of the statement be thus attacked. There was nothing in the prsecipe or writ to show that the defendants were proceeding on a seizure for rent nor do the references to the acts of the defendants in the statement and amended statement amount to an assertion that the defendants had distrained the goods. They are at most expressions of surmise or belief that the defendants claim to have so acted. If it be conceded that the statement originally filed was defective in that it did not set forth the title under which the plaintiff claimed that objection was met in the amended statement where the title and the circumstances under which the property was held by the plaintiff were sufficiently set forth. Inasmuch, then, as a good title was averred and a wrongful seizure set forth, the plaintiff was entitled to an affidavit of defense presenting facts sufficient in law to entitle the defendant to a retention of the goods.

This conclusion disposes of the case without a consideration of the effect of a payment by the plaintiff on the ground rent charge.

The judgment is reversed, the demurrer is overruled and a procedendo awarded.