The opinion of the court was delivered by
Brewer, J.:
This was an action of replevin brought by defendants in error in the district court of Bourbon county. The testimony is not in the record, and the case is before us on the pleadings, the findings, and judgment. The petition alleges an absolute ownership. The findings show that the goods were in the possession of Rucker as constable by virtue of proper and legal process against the firm of L. E. Conner & Co. Plaintiff’s title was based upon an attempted exercise of the right of stoppage in transitu. The findings are, that plaintiffs at St. Lo.uis sold the goods to Conner & Co., and shipped them to Fort Scott; that Conner & Co. were then insolvent, and that this insolvency was unknown to plaintiffs; that the goods never came into the possession of Conner & Co., but were taken by the constable from the carrier by virtue of *255his process; and that the constable paid the freight-charges, and also that plaintiffs demanded possession of the goods from the constable before suit, and while they were in his possession, but did not pay or tender the freight-charges. These are all the facts upon which the court based its conclusions of title and right of possession in the plaintiffs. The first finding shows a passage of the title from plaintiffs to Conner & Co.; and a .reinvestment in plaintiffs of title and right of possession is claimed only by virtue of an exercise of the right of stoppage in transitu. Now, the mere insolvency of the vendee does not of itself amount to a stoppage in transitu; there must be some act on the part of the vendor indicative of his intention to repossess himself of the goods. (1 Parsons on Contr., 478; 2 Kent, 543, and cases cited in notes.) Actual, seizure of the goods before they come into the hands of the vendee is not essential. A demand of the carrier, or notice to him to stop the goods, or a claim and endeavor to get the possession, is sufficient. No particular form of notice and demand 'is required. (See same authorities.) This right can be exercised only during the transit, and before delivery, actual or constructive, to the vendee. But a seizure by an officer under legal process in favor of some other creditor does not destroy the right. (Smith v. Goss, 1 Camp., N.P., 282; Buckley v. Furniss, 15 Wend., 135; Agmire v. Parmelee, 22 Conn., 473" court="Conn." date_filed="1852-07-15" href="https://app.midpage.ai/document/aguirre-v-parmelee-6576663?utm_source=webapp" opinion_id="6576663">22 Conn., 473; Wood v. Yeatman, 15 B. Mon., 270.) Demand must be made of the party in possession. It is not sufficient to make demand of the vendee. (Whitehead v. Anderson, 9 M. & Welsby, 519; Mottram v. Heyer, 5 Denio, 629" court="None" date_filed="1846-12-15" href="https://app.midpage.ai/document/mottram-v-heyer-6142371?utm_source=webapp" opinion_id="6142371">5 Denio, 629.) Applying these rules to the facts of this case and it appears that the transit had not ended; the goods were in possession of an officer holding legal process in favor of another creditor; demand was made of the-party in actual possession. It would seem therefore that the right of stoppage in transitu was not gone, and that the plaintiffs took the necessary steps to assert that right. But it is insisted by counsel that this stoppage in transitu is simply the exercise of a lien by the seller, and not a rescission of the sale; that the petition alleges absolute *256ownership while the findings only show the existence of a lien, a variance that is fatal to the action. It must be conceded that the great weight of authority supports the claim of counsel in reference to the nature of stoppage in transitu, though there is far from absolute unanimity on the question. But it does not appear that any objection was made to proof of this kind of interest in the property under the general allegation of ownership; no motion for a new trial was made, nor does it appear that the attention of the district court was called to this variance, and it is one of those discrepancies which under almost any circumstances might properly be corrected at the trial by an amendment of the petition. As it does not appear by exception or otherwise that the findings are against the evidence, we could not order a new trial, but must direct the judgment that ought to be entered. It does not seem to us therefore, that we ought to disturb the judgment upon that ground.
One question more remains for consideration. The constable paid the freight charges when he took possession of the goods from the carrier. These charges were neither paid nor tendered to him before this suit was commenced. Who then had the right of possession at that time? Clearly the officer. The lien for charges was prior to the claims of creditors, or the rights of the vendor. (2 Kent, 541; Oppenheim v. Russell, 3 Bos. & Pul., 42.) The carrier’s possession could not be disturbed until they were paid. The officer was justified in paying them, and. having paid them was substituted to all the rights of the carrier. Before his possession then could be disturbed he must' be reimbursed the money by him thus advanced. Now, the gist of the action of replevin is the right of possession. (Town of LeRoy v. McConnell, 8 Kan., 273" court="Kan." date_filed="1871-07-15" href="https://app.midpage.ai/document/town-of-leroy-v-mcconnell-7882792?utm_source=webapp" opinion_id="7882792">8 Kas., 273.) Of course, questions of title may also arise, but the action can never be maintained against anyone having the right of possession. The constable having the right of possession was entitled to judgment. He should not be subject to the expenses of a litigation which was not rightfully commenced. The law will protect the possession in him until *257these charges are paid. Having retained the property, the value of this possession need not and could not properly be determined, nor could any judgment be rendered for the return of the property, or the recovery of the value thereof, or the value of the possession. All that could properly be done was to render a judgment in his favor for costs. Such a judgment, upon this ground alone, we are compelled to direct the district court to enter, and the case will be remanded for that purpose. We have in this opinion discussed questions other than the one necessary to be considered,' in order that there might be no dispute hereafter as to the matters decided and disposed of between these parties by this case.
All the Justices concurring.