Walker, C. J.
1. Upon the trial of a possessory warrant, the Judge or Justice shall hear evidence as to the question of possession in a surpmary way, without investigating the title to the property. Code, Sec. 3935. The object of the Statute was to quiet the possession of personal property, and not to try the title thereto. Under our laws a different tribunal has jurisdiction of questions x-elating to title.
2. The plaintiff voluntarily parted with the possession of the mule in controversy, and intended thereby to vest the title in the party froixi whom defendant purchased. Can this innocent purchasex’, by possessory warrant, be deprived of the possession of the mule, because the title of the mule which plaintiff had received in exchange for the one in controversy, proved to be invalid ? We think not. The language of the Statute is that the property “ has been taken, enticed, or carried away, either by fraud, violence, seduction, or other means, from the possession of the party complaining.” This cannot apply to a case where the “party complaining,” voluntarily parted with the possession of his property in exchaixge for other property. This was an exchange of mules, and the plaintiff has his remedy against the negro on his implied warranty of title of the mule swapped to him. If the negro be solvent, as he may be for aught that appears, plaintiff can recover damages for the breach of warranty; if he be not, plaintiff must suffer the consequences of trading with an insolvent stranger’.
Does not the Statute contemplate a wrongful taking of the property from the possession of “ the party complaining ?” and does not the fraud therein mentioned mean that the possession “ has been taken ” by fraud, and not that fraud may have been practiced to px’ocure the assent of the owner? When it is remembered that the object of the Statute was to quiet the possession of property, without investigating the title, such would seem to be the legitimate construction of its meaning. Under the facts of this case we are very clear that the plaintiff should not recover the possession of the mule by this process.
Judgment affirmed.