44 Ark. 447 | Ark. | 1884
The plaintiff and defendant each asserted title by purchase from the same vendor, to a lot of seed cotton. The plaintiff claimed to have purchased it in the held before it was picked, subject to the landlord's lien for rent. The defendant was the landlord, and after the cotton was picked got possession of it with the assent of the tenant, taking a part in satisfaction of his rent, and part in payment of a debt the tenant owed him. The plaintiff sought to take the whole from him in replevin. He admitted the defendant’s prior right and superior title to the rent cotton, but claimed that the defendant had intermixed his own and that claimed by the plaintiff', and thereby forfeited his right to any part of it. It is not shown by the testimony that the defendant was guilty of any fraud or willful wrong in intermingling the rent cotton with that claimed by the plaintiff', if indeed it can be said the cotton was by his act intermingled at all. There had been no separation of the rent cotton from the other at the time of his purchase. He bought it in bulk in the condition it came from the field, without notice of the plaintiff's claim of title, and in good faith as far as the record discloses. In order to ascertain what he \yas entitled to, he weighed out, after the tenant had absconded, first the rent cotton and then the residue he had purchased. There was a small lot of four hundred pounds left, which was laid aside for the plaintiff, and not then claimed by the defendant. It appears, subsequently, to have been swallowed up in the mass, but how or when we cannot determine, and no point is made in regard to it.
The defendant coukl not be visited upon this showing with the loss of his cotton. The rule that takes frpmjhe wrong-doer who confuses his goods with those of another, the right to claim any part of the intermixture, and confers the title to the_whole jipan him whose original dominion was invaded, was devised to prevent^ fraud. It does nuTgoivern where the intermixture js not wrongful. The most usual aud familiar illustration is this: if' a man mixes two parcels together, supposing both to be his own, no change of property takes place. Ryder v. Hathaway, 21 Pick., 306; The Idaho, 93 U. S., 575; 2 Schouler’s Pers. Prop., sec. 49; Story on Bailments, sec. 40.
It is also said, generally, that there is an exception to the rule, or at least that it is less rigorously enforced when all of the goods are of the samé quality and value, as corn, wine or cotton; then each party remains the owner of his aliquot share of the bulk. (Authorities sup.) But whatever may be the remedy of the parties as to a separation in case of disagreement between them, it is settled as far as this court is concerned that replevin cannot be resorted to for that purpose. That action lies only for specific property capable of identification, and cannot be maintained for an undivided interest or share. Person v. Wright, 35 Ark., 169; McKennon v. May, 39 Ib., 442; Washington v. Love, 34 Ib., 93; Ward v. Worthington, 33 Ib., 830.
The determination of these questions settles the case against the plaintiff and in favor of the judgment. As the plaintiff could not recover an undivided share of the cotton in this form of action, the question of his title to a share only is not presented and is not determined. If we admit that the defendant took title to nothing except the rent cotton by his purchase, the judgment is still right.
Affirm.
