An action of detinue determines nothing more than the right to possession. Originally, it had nothing to do with intangible personal property.
Physical personalty obviously has value, but the question of value is not so simple to answer when a written instrument is being considered. The action of detinue lies to recover "deeds and writings". Stephen on Pleading, p. 47. See also, Vol. III Coke on Littleton 340. This is in recognition of their intrinsic value — not of a value they evidence. Without attempting to go into the detail of the rules historically, it may be said with certainty that detinue by a person claiming the right to enforce the liability on the paper now lies to recover the possession of negotiable paper. In other words, the person who claims a right to recover under the instrument is the *Page 794 person to whom it has value and is the only one who may recover it in an action of detinue. Laying down this rule does not mean that the right to recover on the instrument will be adjudicated in an action of detinue, although, of course, the same circumstances that affect that right are of probative value on the right to possession.
There is no contention that Johnson was not entitled to the possession of the four-thousand dollar note secured by deed of trust upon the lands of G. A. Rogers when he delivered that note to the Milton National Bank. The note was payable to bearer and his right to the possession at that time was not, and is not, questioned. Upon payment of the collateral note, the right to possession of the note pledged to secure it would revert to the pledgor. The pledgor's administrator' has taken the position that the pledged note evidences a recoverable debt which is an asset of Johnson's estate and of value to it. The maker of the note takes the position that Johnson was only her agent, that her debt that the four-thousand-dollar note was deposited to secure has been paid and, consequently, that she, the maker, is entitled to the possession of the outstanding paper. If issues of that kind can be raised in an action of detinue, it necessarily means that in that action the beneficial ownership of the property is involved, and the subject matter of the action is expanded beyond trying merely the right to possession.
Mrs. Rogers' position is that this note never at any time represented an indebtedness which she owed, yet she permitted it to go to the Milton National Bank as representing an outstanding debt of hers. Mrs. Rogers' contention is that Johnson was her agent, and there is a substantial showing that she, at the time the note was pledged, was the undisclosed principal whom Johnson represented. The result of this theory, however, is that, considering Mrs. Rogers as a claimant of the promissory note, the basis of her claim destroys its value, which, of course, means that the recoverable right has become more than a collateral issue and has become the sole question involved. It is possible that Johnson's administrator is *Page 795 right in asserting that he has a material interest in the note, and that Mrs. Rogers is also right in saying that she is not obligated to pay the face value of the note. In delivering it to the Milton National Bank, possibly Johnson was acting under an agency coupled with an interest.These, however, are not questions which should be determined in an action of detinue.Hefner et al. v. Fidler, 58 W. Va. 159, 52 S.E. 513, 3 L.R.A. (N.S.) 138, 112 Am. St. Rep. 961. It is my belief that the rule of procedure, in a matter of this involvement, should be to take but one step at a time. I think that when the issues have been decided in this action of detinue, determining only the right to possession, thereafter an action should lie for the purpose of deciding the right to recover on the note in question. This would be the result of applying the rule that detinue will not lie for the recovery of personal property which is without value. A person whose pleadings place him in the position of advancing facts that show the intangible personal property involved to be without value, is not a proper party to an action of detinue and should be dismissed when the record discloses that situation.
As to the question of whether the note is an asset of the Johnson estate and the question of whether his administrator has the right to its possession, I cannot agree that the questions are the same. The estate of a decedent includes, necessarily, claimed causes of action. It is the duty of the personal representative of decedents to settle such claims. They must acquire possession of documentary evidence of indebtedness to which they have a lawful right. Furthermore, they must, in a proper case, invoke the aid of the courts in order to determine what are and what are not assets of decedents' estates. Uncontradicted, Johnson's administrator has made out a case entitling him to possession of the note. With Mrs. Rogers dismissed, judgment in his favor for possession of the note should be entered. I do not think that the personal representative's right to recover on the indebtedness should be determined before his right to the possession *Page 796 of the documentary evidence thereof is passed upon.
I think that the judgment of the Circuit Court of Cabell County should be affirmed, but that Mrs. Rogers should be awarded costs upon this writ of error, as well as upon the proceedings in the Circuit Court, because she was required to become a party and her answer discloses that in an action having nothing to do with the merits or the recoverable right on the note in question but only concerning its possession, she was not a proper party. Such a judgment, I think, would result in no impairment of either the right to recover on the note or of any defense which might be asserted against that recovery. It could be explicitly so stated in the order of judgment.
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