Thе plaintiff brought an action of replevin in the circuit court for the recovery of two mules, alleging that he was “ the owner of, and entitled to the immediate possession of ” the same. The defendant in answer made a genеral denial of the facts alleged in the petition. The case was tried by the court, a jury being waived by the parties.
Plaintiff’ offered testimony tending to prove that he was the owner and in possession of the mules in controversy ; thаt about the month of February, 1880, defendant borrowed said mules from plaintiff’, but said nothing then about his wife’s interest in or claim to same, That defend
The defendant then оffered, and the coui’t heard testimony tending to show that Martha E. Burlingame was the sister.of plaintiff’, and wife of defendant; that she owned jointly with plaintiff' an undivided half interest in said mules at the time they were borrowed by her husband, and also at the time they were taken from defendant under the writ aforesaid. Defendant also introduced evidence showing that he was in possession of said mules at the time they were replevied in this cause, as the agent of his wife; that he was simрly holding the same with and for his wife, by reason of her half interest aforesaid. This was all the testimony offered.
The court, at the instance of plaintiff, declared the law as follows:
“ If the court, sitting as a jury, believe from the evidencе that the defendant borrowed the mules from the plaintiff’ and refused to return them to him when so requested, the court will find the right of possession in the plaintiff'.”
The defendant requested the court, which the latter refused to do, to declarе the law as follows:
“If the court, sitting as a jury, believe from the evidence that at the time of the service of the writ herein, said defendant was the husband of one Martha E. Burlingame ; that said Martha E. Burlingame was, at said date, the joint ownеr, with plaintiff, of the mules in controversy? and that said defendant was in possession of, and holding the same with and for his said wife, then the court should find the issues for defendant.”
The court found the issues for the plaintiff’, and rendered its judgment in due form acсordingly.
The only questions which can arise before us on this record relate to the action of the court m giving the instruction asked by plaintiff, and refusing the one asked by defendant. It is well settled that one joint owner of per
The evidence tended to show, that the defendant’s wife was co-tenant with plaintiff in respect to the ownership of the property sued for;- and that defendant at the time of the replevin, held the title under her and for her use. This would, under the decisions cited, constitute a gоod defense, provided the defendant was at liberty to make it, under the answer and the uncontradictod evidence in the case. Strictly speaking, there was no general issue in the action of replevin at common lаw. The plea of non cepit admitted title in the plaintiff. "When the defendant sought to controvei’t the plaintiff’s title, or right of property, he was required to make traverse of it, and to plead in addition thereto either title in himself, or in a stranger. The material thing was the traverse of the plaintiff’s right of property, and the averment of title in the defendant, or in a stranger, was only matter of inducement. The omission of such matter of inducement was held to be cured by verdict. Dermott v. Wallach, 1 Black (U. S.) 96.
In pleading to this action under the code, a general denial has been held sufficient to put the plaintiff' to proof of title or right of possession, without any averments of title in the defendant, or in a stranger. Gray v. Parker,
The next inquiry is, whether the defendant could make this defence of paramount title in his wife, in face of the contract of bailment by which he acquired possеssion of the mules.
The admitted evidence in the case is, that he borrowed them from the plaintiff, and that at the time he so borrowed and received them, he made no mention of any claim in favor of himself or his wife. I have examined this ques
In pursuing the analogy of these principles in the law of real estate, Mr. Edwards, in his work on bailment says: “ The law always aids the true owner to recover his property; and it is a general rule that the bailee cannot disputе the title of his bailor. When, therefore, the bailee is applied to for the property by a third party claiming title, his pru
Mr. Bigelow in his work on estoppel says: “ The relation between bailor and bailee is analogous tо that of landlord and tenant. Until something equivalent to title paramount has been asserted against a bailee, he will be estopped to deny the title of his bailor to the goods entrusted to him.” Bigelow on Estoppel, (3 Ed.) 430. The principle upon which he can relieve himself from the obligation to return the goods, is ably discussed by Justice Strong in the “Idaho” case,
The relation of bailor and bailee is not antagonistic in any respect, or at any time. By accepting the property he not only admits the bailor’s title, but he assumes, with respect to the thing bailed, a position of trust and confidence, which continues till it is returned or lawfully accounted for. Measured by these principles, the defendant’s evidence must fail to excuse him from the obligation to return the borrowed property found in his possession at the time of thе replevin. It does not appear that his wife, as paramount claimant, ever asserted any title to this property. Consequently his plea that he holds it as agent for his wife, implies that this is his voluntary act, and was not forced uрon him by the assertion in any form of her pretended
The evidence in this case shows that the defendant, at the time of the replevin, was in actual possession of the mules which he borrowed, and that his plea of being the agent or bailee of a paramount owner, rests upon his voluntary act alone, without suit, threat or demand of such owner or claimant.
Although the cases in which the doctrine of jus tertii is defined and enforced, are somewhat conflicting, I am not aware of any well considered expression which goes the length of justifying the defense, as it appears in the evidence and instructions of this case.
Accordingly I am of the opinion that the court did not err in refusing it, or in giving the one asked by plaintiff. The judgment should be affirmed; and it is so ordered.