July 26, 1900. The opinion of the Court was delivered by The record contains the following statement of facts: "On the 21st day of November, 1898, appellant, L.C. Elmore, named above, commenced this action in Magistrate J.M. Hudgens' court in Laurens County against J.T. Elmore, as executor of the last will and testament of George Elmore, deceased, the defendant, respondent, above named, to recover possession of a mule alleged to be of the value of $75. On the trial of the case, Magistrate Hudgens dismissed plaintiff's complaint upon the grounds that the action was prematurely brought and that the plaintiff had not given any undertaking. The plaintiff appealed to the Circuit Court of Common Pleas for Laurens County, alleging error on the part of the magistrate. The appeal was heard at February, 1899, term of Court, by Judge George W. Gage, who reversed the judgment of the magistrate, and remanded the case to the court of J.M. Hudgens, magistrate, or his successor in office, for trial. There was no appeal from Judge Gage's order.
On the 8th day of July, 1899, the case came on for trial, was tried before Judge J.W. Peterson, magistrate, who had succeeded J.H. Hudgens as magistrate at Laurens, S.C. Before the plaintiff closed the testimony and before he concluded the examination of his first witness, Magistrate Peterson granted a nonsuit. The plaintiff again appealed to *Page 291 the Circuit Court of Common Pleas for Laurens County upon various grounds.
The second appeal was heard at October, 1899, term of Court by Judge R.C. Watts, who did not consider plaintiff's grounds of appeal, but dismissed plaintiff's appeal and confirmed the judgment of the magistrate, on the ground that no action of claim and delivery of personal property could be sustained against a party as executor, for an unlawful possession. The plaintiff appeals to this Court, alleging error on the part of Judge Watts.
The practical question raised by the exceptions is whether there was error in the ruling of the Circuit Judge, that "no action of claim and delivery of personal property could be sustained against a party as executor for an unlawful possession." There can be no question as to the manner in which the defendant came into possession of the property, for in his answer he alleges as a fact, which the plaintiff does not deny, that he came into the possession of the mule as the executor of the will of George Elmore, deceased. The A. E. Enc. of Law, vol. VII., 332 (1st ed.), lays down this doctrine: "At common law, no action founded upon a tort committed by the deceased, for which damages only could be recovered as satisfaction, such as trespass, trover, false imprisonment, assault and battery, slander, deceit * * * and the like — where the declaration imported a tort, to person or property, and the plea must be not guilty — lay against his executor or administrator. But if by reason of the tort the estate has derived pecuniary advantage, the representative could be compelled to account to the injured party in another form of action for the benefit so obtained. Thus if goods wrongfully taken away by the deceased remain in specie in the hands of the executor or administrator, the rightful owner might maintain replevin or detinue against such executor or administrator, to recover them back; or trover, laying the conversion to have been by the representative; or if sold, an action for money had and received to recover their value." In 3 Wms. on Ex'ors, sec. 1602, it is said: "In *Page 292 some, however, of the cases above mentioned, a remedy may be had against the executor or administrator in another form: Thus, although at the common law, an action of trover upon a conversion of the testator dies with him, yet if the goods, c., taken away continue still in specie in the hands of the executor or administrator of the wrongdoer, replevin or detinue will lie against such executor or administrator to recover them back; or trover, laying the conversion to have been by the executor; or in case they are sold, an action for money had and received to recover their value." The following cases throw light upon this question: Jenkins v. Bennett,40 S.C. 393; Huff v. Watkins, 20 S.C. 477; Chaplain v. Barrett, 12 Rich., 284; Ford v. Caldwell, 3 Hill, 248; Middleton v. Robinson, 1 Bay, 58. If the testator had sold the mule, the plaintiff could have sued the executor for the value thereof, and we see no reason why he should not be allowed to recover the specific property, if he can show that it belongs to him.
Since there is no question that the mule came into the possession of the defendant as executor of the testator's will, I think the judgment of this Court should be, that the judgment of the Circuit Court be reversed and the case remanded for a new trial, but as two members of this Court are of the contrary opinion, the judgment of the Circuit Court must stand affirmed.