Cases 121–125
Cases 126–128
Case 129
Cases 121–125. The defendant in a vindication is the party currently in possession or alleged to be in possession of the property. The plaintiff’s burden is to prove ownership. The action is not available to a non-owner plaintiff, although the latter may have other remedies, including the “Publician action” treated later in the chapter. If the property is damaged, destroyed, or transferred to another’s possession during the pendency of the proceedings as a result of the defendant’s wrongful conduct, the defendant will be liable for damages equal to the value of the loss, including the loss of fruits or profits that the owner would otherwise have realized.
- Common law “ejectment” is a possessory action that lies only where the would-be possessor is not in possession. If already in possession, an owner-plaintiff must use the action to “quiet title.” Given the permissibility in modern code pleading of amending pleadings even on appeal, is this a distinction without a difference? See Moore v. Duran, 687 A.2d 822 (1996). (Appellant sought to overturn judgment in a quiet title action on the grounds, among other arguments, that the lower court erred in not requiring the plaintiff below to sue in ejectment rather than quiet title. Had the lower court so required, the plaintiff below would in effect have conceded the appellant’s adverse possession claim.)
Cases 126–128. The defendant in an action of vindicatio is not normally liable for accidental loss, unless there has been some additional act that is deemed to be culpable. In addition to recognized delicts such as fraud, even a delay in restoring the property, if caused by the defendant’s bad faith, counts as a culpable act. Issues of this kind can arise at common law when property in the possession of a judgment creditor is lost or damaged prior to reversal of the judgment on appeal. See, e.g., Restatement (First) of Restitution § 10 (1937), Comment 15.
Case 129. On the facts of this case cf. Cases 105–109 and the comments to them above.
C. Cases 134–135 | D. Cases 136–141
