The opinion of the court was delivered by
Valentine, J.:
This was an action of replevin, commenced by the defendant in error, Mary Fuller, against the plaintiff in error, Joseph C. Wilson, to recover a team of horses, harness and wagon. The answer was, first, a general denial; second, a justification as sheriff, holding the property under an attachment issued in an action in which one Munkers was plaintiff and L. Abel and Elias C. Boudinot were defendants, and alleging that the property belonged to Boudinot; and third, an allegation or plea that there was another action pending in the same coürt, in favor of the same plaintiff' against one- John Seercst for the recovery of the same property, and that Secrest held and justified as the mere bailee and receiptor of the sheriff. There was no reply. The action was tried before the court and a jury; and the verdict of the jury and the judgment of the court were for the defendant in error, plaintiff below.
*1861. objections to testimony to be stated. 2. Assignment of erroi, waivei. *185Several questions were raised in the court below and several questions are attempted to be raised in this court, which cannot well be considered on account of the imperfect condition of the record, or perhaps rather on account of the imperfect manner in which the questions were saved and brought to this court. Objections were made by the defendant below to *186the introduction of certain evidence, but as the grounds of the objections were not stated, nor any reason ** _ given in the court below why the evidence was not admissible, the' court below was probably not bound to consider the objections. This is certainly the rule, with probably some exceptions. (See the authorities cited in brief of counsel of defendant in error.) But in this court counsel for plaintiff in error seem to have abandoned this p0jn^ for^ although they have assigned it as error in their petition in error, yet they have since made no reference to it, either by oral argument or in their brief, and therefore we shall not consider it, or take any further notice of the same. See Rule 2, rules of this court; Snyder v. Eldridge, 31 Iowa, 129, citing Shaw v. Brown, 13 Iowa, 508, 510. These cases decide that “errors assigned, which are not presented in argument will not be considered.”
3. Reviewing alleged errors: refold. 4. Instructions upon disputed facts. Questions are raised in this court upon the instructions given and refused by the court below to the jury. But as the record does not purport to contain all the instructions given or refused we cannot well determine whether the court below erred to the prejudice of the plaintiff -n err01.^ or not. This is especially true with regard to those refused. The defendant below asked seven instructions, five of which were-refused and two were given with certain modifications. Those refused may have been refused because the court in its general charge had already given them to the jury. If so, the court certainly did not err: Topeka v. Tuttle, 5 Kas., 312, 322; Gillett v. Corum, 7 Kas., 156; Kansas Ins. Co. v. Berry, 8 Kas., 159; Abeles v. Cohen, 8 Kas., 180; Lobenstein v. Pritchett, 8 Kas., 213. There is nothing in the record that would preclude such a presumption except that the most of the instructions refused are not good law, and could not be legally given either in this or.in any other case. Nearly all the matters upon which the defendant below asked the court to charge were questions *187of fact, which came exclusively within the province of the jury to determine, and were not questions of law at all, such as come within the province of the court to x determine and to give to the jury. They were disputed facts, controverted by both the pleadings and the evidénce. The court would have committed manifest error if it had given said instructions.
5. Modifying instructions. 6. Sales; intent vendee^Titie of bona fide purchaser. The defendant below objected to the modifications of those two instructions which the court gave. The record states that one was the “statutory modification.” What «statutory modification” is or was the record does not disclose; and what the parties or the court imagined it to be we are unable to determine. ' But as it was a “statutory modification” we suppose it was correct. The modification to the other instruction was substantially as follows: The defendant below asked the court to charge substantially that if the sale of the two horses was made by Boudinot to the plaintiff with the intent to defraud the government, the sale was void. The court- so charged, but also so modified the instruction as to substantially say that the sale was not void unless the plaintiff below purchased the property with the like intent. . This modification was not erroneous. It the plaintiff was a bona fide purchaser, the sale was valid as to her although Boudinot may have intended to defraud the government. But suppose the plaintiff also intended to defraud the government: would the sale be void for that reason in favor of any person except the government? Could any person not defrauded nor intended to be defrauded take the property away from the plaintiff, and make it his own, simply because the plaintiff intended to defraud the government ? Such has not heretofore been supposed to be the law. The record contains four instructions which the court gave on its own motion. We perceive no error in either of them. With reference to the fourth however.we might perhaps go further, arid say, that if Mrs. Fuller was a *188bona fide purchaser of the property without notice of any fraudulent intentions on the part of the person from whom she bought it, the sale was valid as to her, although Boudinot may have sold her the property with the intent to defraud his creditors; Diefendorf v. Oliver, 8 Kas., 365; and this is ¡substantially wliat the - court charged in said instruction. What other instructions were given besides those we have already mentioned, the record does not show.
7 Facts settled howand when íeviewabie. It is claimed that the transfer of the horses from Boudinot to Mrs. Fuller was simply a gift cither to her or to her husband, Perry Fuller. But how it is expected that "we shall now determine that it was only a gjft we cannot well understand. The question is a question of fact. It was submitted to the jury upon some evidence tending to prove that a consideration passed, and that the transfer was not a gift. The jury determined the question (as well as all other questions) against the plaintiff in error. It is presumed that the question was presented to the jury upon proper instructions; for where the record does not purport to contain all the instructions, and where those given by the court to the jury which it does contain are not erroneous, it must always be presumed that the proper instructions were given, and how wc are now to determine against the verdict of the jury, and the judgment of the •court below, when no objection to either was made in any form in the court below, is beyond our comprehension. If the verdict of the jury upon this or any other question was not sustained by sufficient evidence why did not the plaintiff in error move to set aside the verdict, or for a new trial, for that reason? and then, if the motion were overruled, bring the whole of the evidence upon that point, instead of a part of it, to this court? Of course it will be admitted that Boudinot could not give away his property even to an innocent party so as to hinder, delay or defraud his creditors; but that question is not before us.
*1898. Instrction presumption savfllg'l’aiuie testimony. . *188That the evidence amply sustained the verdict must be *189presumed, for no motion was made to set aside the verdict or for a new trial. But whether the evidence did sustain the verdict or not we cannot tell, for the ¿[oes 110^ pUrp0rt to contain all the evidence. It is true, that the record states that the evidence it contains “is all the evidence given on such trial which is material to the questions sought to be raised in this case.” But it could not have been supposed that any question would be raised in the supreme court with regard to the sufficiency of the evidence to sustain the verdict, for no such question was raised in the district court. The record itself shows in another place that some of the evidence Ayas left out of the record. With such a record, although it might seem that some material fact was not sufficiently proved, still it Avould have to be presumed that, it Avas sufficiently proved. We think hoAvever, from the record as it is, that there Avas some evidence to prove every material fact in favor of the plaintiff beloAV, and sufficient evidence to sustain the verdict.
9. What questions will not be reviewed. 10. Pleadings; when reply wawea. ' We find in the brief of plaintiff in error the folloAving; “The defense stands admitted for lack of a reply, and the verdict against the admissions is error.” No . _ _ . _ . _ . n . question oi this kind AAras raised m any manner in the court beloAV, and being raised for the first time in this court it aauII of course be looked upon Avith great disfavor. The rule is, that the supreme court Avill hear and determine such questions only as have been passed upon by the court beloAV: Sleeper v. Bullen, 6 Kas., 300, 309, 310. See also in this connection the following cases: Green v. Dunn, 5 Kas., 254, 260, and cases there cited; Greer v. Adams, 6 Kas., 203; Moore v. Wade, 8 Kas., 380; Cooley v. Wilkins, 6 Barb., 558, and cases there cited, in brief of counsel for defendant in error. The rule above stated has its exceptions, or apparent exceptions, but this case does not as Ave think present one of the exceptions. A trial Avas had in the court beloAV in all respects as though a reply had been filed, as though the ansAver Avas contro'verted, and as though the issues had all been properly made up. The attention of the court AAas never called to the fact that no reply had *190been filed. No one seems to have even suspected that the issues were not all properly made up, or that the plaintiff below was in default for want of a reply, until the case reached this court. And now we think it is too late for the plaintiff in error to complain. We cite the following authorities in support of this view, some giving one reason and some another: 1 Chitty Pl., 621; Comyn Dig., Pleader, G., 22; Woods & Hobart v. Morgan, Morris, Iowa, 179; Sigler v. Woods, 1 Iowa, 177; 1 Ill., (Breese,) 35; 17 Ill., 166; 21 Ill., 559; 22 Ill., 140. See also, Shirts v. Irons, 28 Ind., 458, and cases there cited; Irvinson v. Van Riper, 34 Ind., 148. These last cases decide that parties waive reply by going to trial without it.
11. When reply is wSansweiis no defense. 12. Replevin; glst oi notion. But was a reply necessary? We think not. We suppose it will be admitted that a reply is not necessary where the answer is only a general denial, or where the answer in effect amounts only to a general denial, or where the answer states no defense to the action; for such .g cjeaiqy qjie iaw> ]Sf0Wj as the first defense stated in the answer was only a general denial, and as the third supposed defense stated no defense to the plaintiff’s action, we suppose it will be admitted that no reply was necessary as to these. The only question then to be considered is, whether a reply was necessary as to the second defense. The rules of the common law have scarcely any application in this state to an action of replevin. The action is almost exclusively statutory, and differs widely from the old common-law action. The plea non cepit, or, non cepit modo et forma, etc., or, cepit in alio loco, would under our code tender a wholly irrelevant and immaterial issue, and would constitute no defense to the plaintiff’s action. The action resembles more the old common-law action of detinue than it does that of replevin, and the plea non detinet would now be a good defense to our action of replevin. In our statutory action of replevin the gist of the action is the wrongful detention of the property in controversy on the part of the defendani ag agai'i'bst the plaintiffAnd the plaintiff in order to maintain the action must plead and prove, if the *191facts be controverted, first, that he owns or has a special ownership or interest in the property; second, that he is entitled to the immediate possession of the same; and third, that the property is wrongfully detained by the defendant. The ■defendant cannot wrongfully detain property as against the plaintiff unless all these facts exist; and without their existence no action of replevin can be maintained. The plaintiff must necessarily set forth all these facts in his petition, and a general denial on the part of the defendant puts them all in issue, and throws the burden of proving them upon the plaintiff. In this respect the general denial in our action of replevin is very similar to the plea of non detinet in an action of ■detinue at common law. “ In detinue the general issue was ■non detinet, which put in isstre the facts of the plaintiff’s property or possession, and the defendant’s withholding the «chattels.”’ (1 Chitty’s Pl., 525, edition of 1833, and page 488 of later editions; Coke upon Littleton, 283a/ Phillips v. Robinson, 4 Bingham, 111, 112; 13 Eng. Com. Law, 424, 425.) The common law was however changed in England in 1832 by a rule of the court (one of the rules which Chitty calls the “recent rules,”) adopted under the English statutes, which rule took effect in 1834. (1 Chitty Pl., Appendix, 743.) "We might here notice another resemblance between our action of replevin and the common-law ■action of detinue. In detinue “The judgment was in the -alternative, that the plaintiff do recover the goods, or the value thereof if he cannot have the goods themselves, and his damages for the detention, and his full costs of suit.” 1 Chitty Pl., 125; Comyn Dig., Pleader, 2,12; Bacon’s Abr., Detinue; Jacob’s Law Die., Detinue. In our action of replevin the judgment is in the alternative. This was not so in a ■ common-law action of replevin. With all these differences, and more that we might mention, we should be careful not to be misled by common-law authorities concerning the action of replevin. As to what issues a general denial in replevin tenders, and as to what may be proved under it, etc., we would refer to the following authorities: Oaks v. Wyatt, 10 *192Ohio, 344; Ferrill v. Humphrey, 12 Ohio, 112; Loomis v. Foster, 1 Mich., 165; Snook v. Davis, 6 Mich., 156; Craig v. Grant, 6 Mich., 447; Walpole v. Smith, 4 Blackf., 304; Jansen v. Effey, 10 Iowa, 227, 231; Ford v. Ford, 3 Wis., 399. These decisions were rendered in states where the action of replevin is principally statutory, and we think they sustain our views on this question. Whether the defendant can have a judgment for affirmative relief unless he prays for it in his .answer, we do not now choose to decide; (see Gould v. Scannell, 13 Cal., 430;) and whether, if he does pray for such relief in his answer, he can then show that he did not detain or have possession of the property at all, we express no opinion. All that we now desire to say is, that a defendant in replevin may append a prayer for affirmative relief to an answer which contains only a general denial, as well as to any other answer; and if he does so, he may then have upon a verdict in his favor a judgment not only for costs but also a judgment for the proper affirmative relief. .
13. Allegation of tStip£son needs no reply. The second defense set forth in defendant’s answer was in effect only a general denial. The defendant had no right to prove a single fact under it that he could not have proved under his general denial. Under his general denial lie could show that the plaintiff was not owner 0f ¿he property, or that he had no interest therein; and this he could do by showing that Boudinot, or himself, or some other person, was the legal owner of the entire interest in the property. Under his general denial he could show that the plaintiff was not entitled to the immediate possession of the property; and this he could do by showing that himself, or some other person, was entitled to the exclusive possession thereof. Under his general denial he could show that he did not wrongfully detain the property; and this he could do by showing that he rightfully detained the same, or that he did not detain it at all, but that some one else detained it. Said second defense therefore simply denies that the plaintiff was the owner of the property, or that he had any interest therein, *193by alleging that the defendant and Boudinot had the entire interest therein, Bondinot being the general owner, and the defendant having a special ownership or interest therein. Jt denies that the plaintiff was entitled to the immediate possession of the property, because it alleges that the defendant was entitled to the exclusive possession thereof. It denies that the defendant wrongfully detained the property, because it alleges that he rightfully detained it. "We suppose it will not be claimed that a plea which amounts only to a general denial needs a reply; but for authorities see brief of counsel for defendant in error; and for this exact case we would refer to Craig v. Davis, 6 Mich., 447.
14. Errors not assigned foea'viU examined. It is also claimed that the court below erred in rendering a judgment absolutely for the value of the property, instead of rendering the judgment in the alternative, for the property itself, or for the value thereof in case a delivery of the property could not be had. This claim is correct. The court did so err. The judgment should have been rendered as the plaintiff in error claims. (See authorities cited with reference to the judgment in common-law actions of detinue, supra; also, Gen. Stat., 663, code, §185; Smith v. Phelps, 7 Wis., 211; Rose v. Tolly, 15 Wis., 443; Robinson v. Keith, 25 Iowa, 321, 323; Hall v. Jenness, 6 Kas., 356, 365, and cases, there cited; Hunt v. Robinson, 11 Cal., 277.) But there was no exception to this judgment, ho motion to set it aside, or for a new trial; and the court was not asked by m°tion or otherwise to have the judgment entered ^ ^ie a]ternatiye. If our rules of practice were the same as the rules of practice upon this subject are in Iowa we would not for these reasons examine this question. In the case of Robinson v. Keith, supra, the court say: “There was a general exception to the judgment, but the court was not asked by motion or otherwise to enter the alternative judgment. Under this general exception appellant cannot be heard to allege objections to the form of the judgment.” But our rules of practice upon this subject differ from those of Iowa. We review the form and substance of a *194final judgment, and correct all substantial errors therein, whether the judgment has been excepted to in any form or not. (Lender v. Caldwell, 4 Kas., 339, 347; Koehler v. Ball, 2 Kas., 160, 169, and cases there cited.) But while the plaintiff in error complains in his brief of this judgment being rendered as absolute, and not in the alternative, yet he has not assigned -the same as error in his petition in error, and therefore we shall take no further notice of the question. We consider no rulings of the court below except such as are ■assigned for error. The judgment of the court below is affirmed.
All the Justices concurring.