The duplicate was rejected, for the reason that plaintiff had not set'forth his title in his petition. He was not bound to do this. This duplicate was his evidence, and not the instrument upon which his pleadings, or action, was founded, within the meaning of section 1759 of the Code. A party is not bound to set out in his petition, the title under which he claims in such an action. Tattersall v. Cook, 1 Iowa, 1.
After the duplicate was rejected upon the above ground, plaintiff offered the same for the purpose of proving title to the personal property named in the last count. This was objected to, and the further objection made, that plaintiff could not recover without showing that he was in the actual possession of the land. The petition states that the personal property consisted of rails and logs. And that they were the goods and chattels of the plaintiff. Actual possession was necessary, to enable plaintiff to recover for such personal property. If plaintiff had the title to the land, and the logs and rails were found thereon, this would be evidence of ownership, and until rebutted, sufficient,
Judgment reversed.