|particular state. At Common Law it was necessary to allege a wrongful taking; but, by statute, in many states an unlawful detention of the chattel at the time of the suit, is sufficient. And the general rule is that the defendant must have possession at the time of Commencing the Suit.
THOUGH, as we have seen, Replevin was originally used in cases in which property had been illegally taken in distress, it is not so limited now, but will lie in any case where the goods have been wrongfully taken and wrongfully detained, provided, of course, the plaintiff is entitled to their possession.57 An unlawful deteption, without an unlawful taking, is not enough.
title. MeArthur v. Oliver, 60 Mich. 605, 27 NW. 689 (1886).
But in order to maintain the action, a tenant in common must show something more than his undivided ownership; he, at least, must show that he was in possession. Hess v. Griggs, 43 Mich. 307, 5 KW. 427 (1850).
One partner can bring fleplevin for the whole partnership property, if it is seized on Execution for another’s individual debt. Hutehinson v. Dubois, 45 Mieh. 143, 7 N.W. 714 (1881).
Z7. Massachusetts: flsley V. Stubbs, S Mass. 283
(1809); New Jersey: Haythorn v. Itushforth, 19 N.
J.L. ieo, 38 Am.Dec. 540 (1842); New York: Pang-
burn V. Patridgc, 7 Johns. (N.Y.) 140, 5 Am.Dec. 250
It lies for goods obtained by false pretenses. Maine:
Ayes v. Hewett, 19 Me. 281 (1841); Massachusetts:
Browning v. Bancroft, S Mete. (Mass.) 278 (1844); New Hampshire: Farley v- Lincoln, 51 N.H. 577, 12 Am.Bep. 182 (1872). See, also, 1 Chitty, Treatise on Pleading and Parties to Actions with Precedents and Forms, c, II, Of the Forms of Action, Section fl, Replevin, 184 (16th Am. ed. by Perkins, Spring. ~eld, 1876); 3 Street, Foundations of Legal Liability, c. XVI, The Action of Replevln, 215 (Northport, 1906).
At Common Law, the Action would only lie where the property was tortiously or unlawfully taken from the actual or constructive possession of the plaintiff, a Trespass in the taking being absolutely essential, and this is still the rule in some of our states.58 Under such circumstances the action is called “Replevin in the Cepit.”
In many other states, however, the remedy by Replevin has been extended by Statute, that is, so as to embrace these cases in which property has been lawfully obtained, but unlawfully detained, as under a contract. k these it will lie where the property was wrongfully taken, or where, through possession was originally acquired lawfully, the property is wrongfully detained.59
58. Illinois: Wright v. Armstrong, Breese (Ill.) 172
(1826); Simmons v. Jenkins, 76 Ifl. 479 (1875);
Johnson v. Prussing, 4 Ill.App, 575 (1879); New
Hampshire: Dame v. Dame, 43 N.H. 37 (1861);
Woodward V. Grand Trunk By. Co., 46 N.H. 524
(186W; Farley v. Lincoln, 51 N.H. 579, 12 Am.Bep,
It was held in the Woodward case, supra, for instance, that Beplevin could not be maintained against a carrier, for the detention (though wrongful) of goods which came into its possession lawfully. At Common Law the action was available only where Trespass tie bonis asportatis would lie. Maine: Sawtelle v. Rollins, 23 Me. 196 (1843); New Mexico:
Enfield v. Stewart, 24 N.M. 472, 174 Pac. 428, 2 A. Lit. 196 (1918); New York: Pangburn v. Patridge, 7 Johns, (N.Y.) 140, 5 Am.Dee. 250 (1810); Marshall V. Davis, 1 Wend. (N.Y.) 109, 19 Am.Dee. 463 (1828); Allen v. Crary, 10 Wend. (N.Y.) 349, 25 Am.Dee. 560 (1833).
~9. Massachusetts: Simpson v. M’Farland, IS Pick.
(Mass.) 427, 29 AmDee, 602 (1836); Page v. Crosby,
24 Pick. (Mass.) 215 (1835); Dugan y. Nichols, 125
Mass. 576 (1878); Michigan: Sexton v. Mcflowd, 38
Mieh. 148 (1878); Pennsylvania: Weaver v. Lawrence, I Dali. (Pa.) 156, 1 LEd. 79 (1785).
Under these Statutes the action will lie generally whenever Trover could be supported—-that is, whenever the defendant wrongfully detains the goods, or converts them, without regard to the manner in which he obtained them. Cobbey, Law of Replevin as Administered by the Courts of the United States, c. IV, When the Action Lies Generally,
* 51 (2d ed. ChIcago, 1900); Maine: Sawtelle v. RollIns, 23 Me. 196 (1843); Eveleth v. Blossom, 54 Me. 447, 92 Am.Dec. 555 (1867>; Massachusetts: Baker
ACTION OF JUPLEVIN
Some Form of Action for Damages should be brought if the defendant has not the actual possession of the property when the action is commenced, for the remedy is proprietary and enforces the right of possession. While the Action is primarily for the recovery of possession, the same facts which show a wrongful obstruction of the right of property show also a tort, and the plaintiff is entitled to recover Damages which he has suffered by the wrongful taking or detention, and also the value of the goods in case the property itself cannot be 1’ ad.
The defendant must In all cases have actual or apparent possession and control of the property at the time the action is commenced. If the property has been lost or destroyed, or disposed of by him to the plaintiff’s knowledge, the action will not lie, but the plaintiff must bring Trespass or Trover.°° But if the defendant has been in the unlawful possession of the property, and the plaintiff brings Replevin without reason to know of any change in the circumstances, the defendant cannot defeat the action by showing that, unknown to the plaintiff, he had disposed
v. Pales, 16 Mass. 147 (1819); Whitman v. Merrill,
125 Mass. 127 (1878); New Hamflshire: Hart V.
Boston & M. B. B., 72 NIl. 410, 56 At]. 920 (1903)
New Jersey: Pedriek v. Kueminel, 74 N.J.L. 379, 65
Atl. 846 (1906); New York: Marshall v. Davis, 1
Wend. (N.Y.) 109, 19 Am.Dec. 463 (1828); Vermont:
Wifls V. Barrister, 36 Vt. 220 (1863).
GO. Illinois: Gaff v. Harding, 48 Ill. 148 (1868); Massaehusetts: Richardson v. Reed, 4 Gray (Mass-.) 441,
64 Am.Dee. 77 (1855); Hall v, White, 106 Mass. 599
(1871); Michigan: Gildas v. Crosby, 01 Mieh. 413,
28 NW. 153 (188W; Montana: Glass v. Basin & Bay
State Iflu. Co., 31 Mont. 21, 77 Pac. 302 (1904);
New Hampshire: Mitchell v. Roberts, 50 N.H. 486
(1871); New York: Sinnott v. Feioek, 165 N.Y. 444,
59 N.E. 265, 53 L.B.A. 565, 80 Ani.St.Rcp. 736 (1901);
Nevada: Nielsen v, Rebard, 43 Nev. 274, 183 Pae.
984 (1919); Utah: Nielsen v. Hylancl, 51 Utah 334,
170 Pae. 778 (1918).
Replevin will lie although the property is not in the actual possossion of the defendant, if it is under his control, so that he may deliver it If he so desires.
Minnesota: Eurkee v. Great Northern By. Co., 133 Mlan. 200, 158 N,W. 41 (1916); Missouri; Be Wolff v. Morino, 187 sw. 620 (Mo.App.i916).
of the property before issuance of the Writ; but the action will proceed, and the plaintiff may recover the value of the property. And where the plaintiff is in possession of the property when the Writ issues, but the property has been injured or depreciated through the defendant’s fault, or if he is in possession of a part only, the plaintiff is not bound to accept the property, or the part thereof~ but may proceed with his action for Damages.61
The Action will not lie to determine title and right to possession of property which is claimed by the defendant, but of which the plaintiff has possession at the time of suit.62
81. Michigan: McBrian v. Morrison, 55 Mich. 351, 21 NW. 368 (1884); New York: Snow v. Boy, 22 Wend. (N.Y.) 002 (1840); Nichols v. Michael, 23 N.Y. 264, 80 Am.Dee. 259 (1861.): Washington: Andrews v. Hoeslich, 47 Wash. 220, 91 Par. 772, 18 LEA. (N.S.) 1265, 125 Am.St.Rep. 896, 14 Ann.Cas. 1118 (1907), in which a diamond ring was pawned by the plaintiff to the defendant and sold without the plaintiff’s knowledge or consent. Cf. California: Bieietto v. Clement, 94 Cal. 105, 29 Pae. 414 (1892); Michigan:
Andersoa V. Boneman, 199 Mich. 532, 105 NW. 830 (1917); South Dakota: Kierbow v. Young, 20 S.D. 414, 107 NW. 871, 8 L.B.A.(N.S.) 216, 11 Ann.Cas.
02. Michigan: Hickey v. Hinsdale, 12 Mieb. 09(1863); Bacon v. Dai-is, 30 Nich. 157 (1874); Aber v. Brat-ton, 60 Mieb. 357, 27 NW. 564 (1880).
One cannot bring Rep)evia for property actually in his own possessioa against an officer who has merely levied on it. Iliekey v. Hinsdalc, 12 Mich. 99 (1863). It is not always necessary, however, that goods levied on shall have been actually removed, in order to constitute such a change of possession from the owner to the officer as will entitle the owner to maintain Beplevin. Michigan: O’connor v. Gidday, 63 Mich. 630, 30 N.W. 313 (1886); Gutsch
V. Mcllhargey, 69 Mich. 377, 37 NW. 303 (1888); New York: Fonda v. Van home, 15 Wend. (N.Y.) 631, 30 Aatflee. 77 (1836).
Thus, where property was seized on an Attachment, an inventory made, and a portion of tIle goods packed up in a trunk, but left in the owner’s office, and a portion wag removed, and the key of the office was retained for a time by the officer, it was held that this was a sufficient change of possession
The Action, by Statute, Becomes Tran.sitory
FROM the early use of this action as a remedy for a wrongful distress the place of taking became a material fact, to be truly laid and proved.”3 The strictness of this rule has been much relaxed, however, and in some of the states the action is now made transitory, but it seems still necessary that the Venue should be laid in the county in which the Cause of Action arose. Clearly, it should be accurately stated when such place is involved as a matter of essential description. Should it not be within the plaintiff’s power to ascertain the true locality, he may, it ~eems, aver a taking and detention, or a detention only, at any place where the property has been discovered in the possession of the defendant.”4
When a Demand May be Necessary
A DEMAND is not necessary before bringIng the Action, where the possession of the property was wrongfully obtained, as under a void sale by a pound master, or under an execution against a third person, or where the defendant acquired possession by fraud or trespass, or a sale voidable for fraud, so long as the goods are in the hands of the buyer.”3 On the other hand, in those states,
to justify fleplevin. Maxo]’ v. Perrott, 17 Mid,. 332, 97 Am.Dee. 191 (1868).
When property levied on has been left in the owners possession, the fact that he became receiptor for it to the officer does not entitle him to maintain Beplevin. Morrison v. Luinbord, 48 Mid~. 548, 12 N. W. 696 (1882).
$3. Gardner v. Humphrey, 10 Johns. (N.Y.) 53 (1813). See Dyers v. Ferguson, 41. Or. 77, 05 i’ac. 1067, 08 Rae. 5 (1902).
$4. Abercromtie v. Parkhurst, 126 Eng.Rep. 1395, 9 Los. & P. 480 (1801).
cs. Illinois: Clark v. Lewis, 35 III. 417 (1804); Tuttle v. Robinson, 78 IlL 332 (1875); Goldsdhmidt V. Berry, IS fll.App. 276 (1885); Indiana: Jones v. Smith, 123 lad. 585, 24 N.E. 368 (1890); Maine: Stone v. Verry, 60 Me. 48 (1872); Michigan: Trudo v. Anderson, 10 Mich. 857, 81 Am,Dec. 705 (1862); LeRoy v. East Saginaw City B. Co., 18 Mich. 233, 100 Am.Dee.
where the action is allowed to recover property lawfully obtained, but unlawfully detained, the Declaration, if it does not show an unlawful taking, but relies merely on an unlawful detention, must allege demand and a refusal to surrender the property; a demand being necessary to render the detention unlawful.””
DECLARATION IN REPLEVIN—ESSENTIAL
ALLEGATIONS: (4) TUE DAMAGES
133. The Declaration must state Damages which are the legal and natural consequences of the wrongful act.
The Allegation of value is essential, and such general and special damages as are present should be stated, and laid high enough to cover the actual loss.
As the object of this action is the recovery of the thing itself, the damages recoverable wifl be generally for the unlawful taking and detention, or for the latter where the taking is justified; and the allegation here referred to is the statement of at least a nominal sum in the declaration to cover the loss so sustained,~~ An allegation of some damage is always essential,”8 and the plaintiff may often recover compensation for the use of the property, as well as vindictive or punitive damages, and damages may be assessed up to the time of the trial.
102 (1869); Ballou V. O’Brien, 20 Mich. 304 (1870):
Bertu-liistle v. Gocidrich, 53 Mich. 457, 19 NW. 143
(1884); Dentoa v. Smith, 61 Mieb. 431, 28 N.W. 160
(1856); New Hampshire: Fancy ‘v. Lincoln, 51 N.
II. 577, 12 Ani.Rop. 182 (1872); New York: Stiliman
t. Squire, I Denio (N.Y.) 327 (1845); Wisconsin:
Appleton v. Barrett, 29 Wis. 221 (1871).
60. Connecticut: Lynch v. Eeeeher, 38 Conn. 490
(1871); Illinois: Hamilton v. Singer Mfg. Co., 54
III. 370 (1870); Ohio & M. By. Co. -v. Noe, 77 ~I. 513
(1875); Kansas: Chapin v. Jenkins, 50 Kan. 385, 31
l’ae. 1084 (1893); Michigan: Cadwell v. Pray, 4!
3iich. 307, 2 NW. 52 (1870); Adams v. Wood, 51
Mich. 411, 16 NW. 788 (1883); Oklahoma: Chandler v. Colcord, 1 OkIa. 260, 32 Pac. 380 (1893).
67. See Washington Tee Co. v. Webster, 02 Me, 341,
16 Am.Bep. 462 (1873); tounglove v. Knox, 44 Fla.
743, 33 South. 427 (1902).
68. Paget v. Brayton, 2 Ear. & 3. (Md.) 350 (1808).
ACTION OF REPLEVIN
ASSUMING that the Sheriff had found and delivered the distrained chattel to the plaintiff-tenant, in the action which followed the Judgment for the plaintiff was for the recovery of Damages for the taking and detention of the chattels—the horse and plough
—together with costs.”9 Where the property was not returned to the plaintiff, he recovered in addition the value of the property still detained.70
In the event of a Judgment by default, where the Damages were not confessed, a Writ of Inquiry issued to assess them, the amount of which turned on the result of the Sheriff’s effort to recover the chattels in question.”
The nature of the Judgment, when for the defendant, varied. But under the general Common Law Rule he was adjudged return
of the property, without Damages or costs,72 If the defendant proceeded under the Statute of 7 Hen. VIII (1515) ,‘~ which provided that
-the recoverer may distrain for the rents and services of the tenant, fermor, etc., and 21 Hen. VIII (1529) ‘~ which provided that the avowant shall recover damages and costs of suit, he recovered, after Verdict in his favor, his Damages and costs, in the same manner as the plaintiff might have done, if he had
69. 1 Chitty, Treatise on Pleading and Parties to Actions with Precedents and Forms, C. II, Of the Forms of Action, 186, Section III, Replevin (16th ed. by Perkins, Springfield, 1876).
70. wilkinson, The Practice in the Action of Replevin, with a Collection of Practical Forms, 43 (London, 1825).
11. 2 Roscoe, Law of Actions Relating to Real Ploperty, 645 (London, 1825),
12 1 Esplnasse, Settling of Evidenee for Trial at Nisi Prius and the preparing and Arranging of Necessary Proofs, 375 (Philadelphia, 1822).
13. c. 4, § 3, 4 Statutes at Large 144.
recovered from the defendant.’5 By the Statute of 17 Car. II (1665) ,76 when Judgment was given on Demurrer for the defendant Avowing or making Cognizance for any rent, he was entitled to a Writ of Inquiry as to the value of the property distrained, and a Judgment for the arrears of rent admitted by the Judgment to the amount of the value of the property distrained, together with Costs.” Apparently, it was optional with the defendant whether he would take Judgment under this last Statute alone, or in addition to the Common-Law, Judgment for a return of the property. If, however, the Judgment were taken under the Statute along with the Common-Law Judgment for a return, it operated as a stay of the Writ for the Return of the goods. If, under Section 21 of the same Chapter and Statute, the plaintiff was nonsuited before issue joined, the defendant was entitled to an Inquiry as to the amount of rent in arrear, and the value of the property distrained, upon which finding Judgment went in his favor as on Demurrer. In such case he had the option to sue out the Writ of Return, or have Execution for the Damages.’”
75- 2 ltoseoe, Law of Actions Relating to Real Property, 646 (London, 1825).
76. e. 7, § 3, which provided: “And be it further enacted by the Authority aforesaid, That if Judgment in any of the Courts aforesaid be given upon Demurrer for the Avowant, or him thnt mak-eth Cognizance for any Rent, the Court shall, at the Prayer of the Defeadant, award a Writ to inquire of the Value of such Distress; and upon the Return thereof Judgment shall be given for the Avowant, or him that makes Cognizance as aforesaid, for the Arrears alleged to be behind in such Avowry or Cognizance, if the Goods or Cattle so distrained shall amount to that Value; and in case they shall not amount to that Value, then for so much as the said Goods or Cattle so distrained amount unto, together with his full Costs of Suit, and shall have like Execution as aforesaid.”
77- 2 Roscoe, Law of Actions Relating to Beal Property, 046 (I.~ondon, 1825).
78. Martin, Civil Procedure at Common Law, c. III, Personal Actions Ex Delieto, Art. V, Replevin, 101 (St. Paul, 1905).
14. c. 19, § 3, 4 Statutes at Large 196.
STATUS UNDER MODERN CODES,
PRACTICE ACTS AND RULES
13t Under Modern Codes and Practice Acts Replevin is generally Expanded so as to cover all forms of taking, whether lawful or unlawful, and may be maintained in circumstances where either Replevin or Detinue would lie at the Common Law.
AS we have previously observed in Mennic
v. Bialcc ‘~ and Harwood v. Smethtirst,8° the English and American Court refused, by
Judicial Legislation, to extend Replevin so
as to include a Detinue factual situation. But what the Courts refused to do by Judicial Legislation was subsequently accomplished by legislation which, in general, provided that for the purpose of supporting an Action of Replevin an unlawful taking was not necessary. As a result of this development, and entirely aside from the Codes, Detinue was in effect abolished and Replevin expanded in scope so as to cover all forms of taking, whether lawful or unlawful.
This was the situation when the Codes
purported to abolish the Common Law Actions, What effect, then, has the Code had upon the Action? The answer to this question may be found in the 1901 New York case of Sinnott v. Felock,”’ in which the plaintiff brought an action to recover certain chattels, which the Court referred to as an Action of Replevin, and in which it was alleged the plaintiff has been induced to sell the chattels to the defendant by fraud on the part of the latter. In his Opening Statement the plaintiff’s counsel conceded that prior to a demand for the return of the goods and before the Commencement of the Action, the chattels had been taken from the defendant on an Execution against him and sold, so that at the time of such
¶8. B El. & El. 842, 119 Eng.Rep. 1078 (1856).
80. 29 N.Jt. 195, 80 Am.Dec. 207 (1801).
81. 165 N.Y. 444, 50 N.E. 265, 53 L.R.A. 565, 80 Am. StRep. 786 (1001).
demand and Commencement of the Action, they were not in the defendant’s control, custody or possession. On this concession, the Trial Court dismissed the Complaint and
the Judgment entered on such dismissal was affirmed by the Appellate Division. The Court of Appeals stated that the issue presented was: whether the defendant was liable in an Action of Replevin for the recovery of chattels after they have been taken from him by process legal as to him and not by any voluntary act on his part?
The determination of this issue turned, therefore, upon an examination and consideration of the Action of Replevin as it existed under the New York Code arid Statutes. In affirming the Judgment for defendant, and in speaking for the Court of Appeals, Cullen, J., declared: 82
“Originally at Common Law the Action of Replevin lay to recover the possession of goods illegally distrained by a landlord. The primary object of the Action was to recover possession of the specific chattels, The Form of Action was so useful that the action was extended to nearly all cases of unlawful caption or detention of chattels
where it was sought to recover the chattels in specie. In many cases where the plaintiff was unable to obtain the return of the chattels he could recover in the action their value. Still, the action remained essentially one to recover the possession of chattels as distinguished from actions in Trespass or Trover to recover Damages for the seizure or for the value of the property. There were many technical rules in force relating to this Form of Action, which at times made proceedings under it difficult, and in 1788 a Statute was passed in this state (1 Rt.1813, p. 31) to simplify the procedure. It directed the form of plaint before the Sheriff in which the plea was ‘of taking and unjustly detaining’ beasts, goods or chattels. Afterwards, the Revised
82. 165 N.Y. 444, 451, 59 N.E. 265, 207, 53 L,RA. 565,
568, 80 Am,St.Rep. 736, 739 (1901).
ACTION OF REPLEVIN
Statutes prescribed the rules governing actions of Replevin and the procedure therein. (Title 12, chap. 8, part 3.) In the original note of the revisers is stated their intention to so extend the Action of Replevin ‘as to make it a substitute for Detinue, and a Concurrent Remedy in all cases of the unlawful caption or detention of personal property, with Trespass and Prover.’ We do not think the revisers used the term ‘Concurrent’ as meaning ‘Co-extensive,’ for by Section 6, title 12, it is provided that the Action shall in all cases be commenced by Writ, the Form of which is prescribed as follows: ‘Whereas A.B. complains that C.D. has taken, and does unjustly detain (or, “does unjustly detain,” as the case may be).’
“The Execution in the Action required the Sheriff to Replevin the goods if they could be found and deliver them to the plaintiff, and in case they could not be obtained to collect their value with the damages and costs from the property of the defendant. The provisions of chapter 2 of title 7 of the Code of Procedure of 1848, entitled ‘Claim and Delivery of Personal Property,’ operated as a substitute for those of the Revised Statutes. They direct that at the Commencement of the Action the plaintiff may replevy the chattels, but in the Affidavit to obtain the writ there is required the statement that the defendant ‘unjustly detains’ them. The provisions of the present Code of Civil Procedure in the article entitled ‘Action to recover a chattel’ (§ 1689 to § 1730), are substantially the same as those of the old Code.
“The question several times arose, under the Code of Procedure whether Replevin could be maintained against a party who was not in possession, either actual or constructive, of The chattels, and was the subject of conflicting decisions in the Supreme Court and in the Superior Court of New York. It finally came to this Court in Nichols v. Michael, (23 N.Y. 264) This was also a ease of fraudulent purchase of goods
in which the defendant, before the action was brought, had voluntarily transferred the goods to his assignee. It was held that the Action could be maintained. * * *
“It is urged that whatever may have been
originally the nature and character of an Action of Replevin, there is now no longer reason for maintaining a distinction between it and an Action for Conversion, and that it would conduce greatly to the speedy administration of justice to permit the use of the first Form of Action as a substitute for the second. A good deal may be said in favor of this claim, great as would be the innovation resulting in its acceptance. There is, however, a serious objection to adopting this view of an Action of Replevin. If a defendant is arrested in an Action to recover a chattel he can be discharged only upon giving a bond for the return of the chattel or the full payment of any judgment that may be recovered against him; while in an Action for Conversion the bond is conditioned only for his personal surrender to any mandate or final Judgment against him. (Code Civ. Pro. ~ 575.) The Form of the Action, therefore, seriously affects the rights of the defendant against whom it is brought. While this consideration should not induce us to limit the Scope of an Action of Replevin except within the bounds prescribed by Statute and the authorities, it may well restrain us from taking any radical departure in the Law.” sa
83. Section 1093 of the New York Civil Practice Act, which provided that a rleferdnnt, liv answer, could defend on the ground that a third person was entitled to the chattel, without conncctin~ himself with a latter’s title, was held not applicable to wrongful taking cases; it was applicable to the wrongful detention cases. Griffin! Receiver v. fling Island By. co., 101 N.Y. 348, 4 N.E. 740 (1886); Hofferinan v. Simmons, 290 N.Y. 449, 49 N.E.(2d) 523 (1943). For an extended discussion of the New York decisions and Statutes see Article by Finkelstein, The Plea of Property in a Stranger in Replevin, 23 col.L.Rev. 652 (1923). Section 7101 of the New York Civil Practice Law and Rules, 1968, provides that, “An action under this article may be brought to try the
272 OFFENSIVE PLEADINGS Cli. 12
right to possession of a chattel.” The intent of this defendant, contrary to the Common Law Rule, is
new section Is that the decision should he based up- permitted to retain the property upon posting a on the relative possessory rights of the