Sections

CHAPTER XXIII

REPLEVIN

1690-1703. Article I.-Rights and defenses.

1704-1707. Article II-Jurisdiction and parties.

1708-1721. Article III.-Proceedings for taking and redelivery of property. 1722-1731. Article IV.-Pleadings and evidence.

1732-1733. Article V.-Damages.

1734-1752. Article VI.-Trial, judgment, enforcement of judgment, and re

view.

1753-1756. Article VII.-Liabilities on bonds and undertakings.

§ 1690. Remedy-Nature

The gist of replevin is the right to possession of chattels in controversy.1

At common law, as now, a replevin action tested only the right of possession at the commencement of the action.2

Replevin is distinguished from trover, which is an action to recover damages sufficient to cover the value of personal property wrongfully held by another, while replevin or detinue is primarily

1 Robinson & Co. v. Stiner, 109 P. 238, 26 Okl. 272.

2 Humphrey v. Baker (Okl.) 176 P. 896.

an action to recover the property, and a judgment is given only in the absence of ability to secure the specific articles claimed.3

§ 1691. Property subject

Replevin will lie to recover property seized in judicial proceedings, provided the property is not properly in the custody of the law as against the claimant."

Replevin will not lie for an undivided interest in personalty not divisible into aliquot parts.

3 Leeper Graves & Co. v. First Nat. Bank of Hobart, 26 Okl. 707, 110 P. 655, 29 L. R. A. (N. S.) 747, Ann. Cas. 1912B, 302.

4 Replevin lies against an officer for personalty held by virtue of an order of delivery issued in an action to which plaintiff is not a party. Reiley v. Haynes, 16 P. 440, 38 Kan. 259, 5 Am. St. Rep. 737.

Under Rev. Laws 1910, § 4799, replevin will lie against a sheriff wrongfully holding under execution property exempt under section 3342. Taylor v. Smith, 44 Okl. 403, 144 P. 1028.

One claiming to be the owner of property held by an individual under a bond given in judicial proceedings for redelivery of it, other than the person against whom the writ runs, may assert his rights in it by replevin. Alexander v. Alexander (Okl.) 164 P. 114, L. R. A. 1917D, 984.

5 Where final judgment of justice of peace for defendant on merits dissolved an attachment, the attachment lien was discharged and property released, and, on constable's refusal to surrender it upon demand, defendant's remedy was by action against constable to recover it or its value. Thompson v. Grove (Okl.) 180 P. 553.

The owner of personalty which has been taken from him by a city marshall with a warrant in an action commenced under a void ordinance against such owner cannot maintain replevin against the marshall for the recovery of the property. Karr v. Stahl, 89 P. 669, 75 Kan. 387.

Where intoxicating liquors and other property are seized under Gen. St. 1901, § 2494, and are held by the officer who served the warrant pending a hearing under section 2495, the owner cannot maintain replevin to recover possession; the property being in the custody of the law until final action on the complaint. Greentree v. Wallace, 93 P. 598, 77 Kan. 149.

Property held under bond in replevin conditioned for its redelivery is to be considered in custodia legis the same as if in the actual possession of the officer, and, being in custodia legis, a sale under the mortgage was void, and the proceeds thereof cannot be applied as a credit upon the mortgage debt for the satisfaction of which the same was replevied until such action has been finally determined. Farmers' State Bank of Arkansas City, v. Stephenson, 102 P. 992, 23 Okl. 695.

Replevin may be maintained against an officer who seized the property under an order of sale issued on a judgment of foreclosure of a chattel mortgage, though plaintiff was a defendant in the foreclosure suit, where the order of sale did not direct the seizure of property of plaintiff, and was not issued against him. Scott v. Wagner, 42 P. 741, 2 Kan. App. 386.

6 Thomas v. Armstrong, 51 Okl. 203, 151 P. 689, L. R. A. 1916B, 1182; McDonald v. Bailey, 107 P. 523, 25 Okl. 849, 37 L. R. A. (N. S.) 267.

§ 1692. Scope-Equity

While legal and equitable rights may be determined in replevin, the equities to be settled must relate to the property or the rights. arising out of the contract, and not to the recission thereof."

It is not proper to make a replevin action the means of litigating and determining the title to real property as between the original owner and the tax-title claimant in adverse possession of the premises under a tax deed valid on its face."

§ 1693. Liens on animals

All proceedings under the article giving a lien for feeding, grazing, herding, and breeding," where it is not otherwise therein specifically provided, are governed by the general laws concerning replevin.10

"For the purpose of enforcing such lien upon default in the payment of the sum secured, the lienor may proceed by replevin in any court of competent jurisdiction, and possess himself of the incumbered property, and hold the same subject to such judgment as he shall recover." 11

§ 1694. Property seized under prohibitory law

"No liquors, vessels, fixtures, furniture or other property seized by virtue of any warrant issued under the provisions of" the statutes relative to prohibition enforcement, "shall be taken from the possession of the officer seizing the same under any replevin or other process.'

" 12

7 Kansas City Hay Press Co. v. Williams, 51 Okl. 6, 151 P. 570. Replevin is not a chancery proceeding which can be invoked for the cancellation of a contract. Penton v. Hansen, 73 P. 843, 13 Okl. 450.

8 Rees v. Higgins, 61 P. 500, 9 Kan. App. 832.

9 Rev. Laws 1910, §§ 175–184.

10 Rev. Laws 1910, § 185.

11 Rev. Laws 1910, § 183.

12 Rev. Laws 1910, § 3614.

Replevin will not lie to recover beer from an officer holding it under a search and seizure warrant under Comp. Laws 1909, § 4184, nor from a common carrier who has received it from the officer to carry it to a superior officer; the delivery by the inferior officer to the carrier being a delivery to the superior officer, and the provisions of section 4186 being applicable to all officers charged with the duty of handling the liquor. Stiller v. Atchison, T. & S. F. Ry. Co., 124 P. 595, 34 Okl. 45,

§ 1695. Rent-Crop

"When any such rent is payable in a share or certain proportion of the crop, the lessor shall be deemed the owner of such share or proportion, and may, if the tenant refuse to deliver him such share or proportion enter upon the land and take possession of the same, or obtain possession thereof by action of replevin." 13

Replevin is a proper remedy to recover crops of a subtenant seized by a constable under an attachment to enforce a landlord's lien for rent against the tenant in chief when such crops were not subject to such lien when the attachment issued.11

§ 1696. Purchaser with notice liable

"The person entitled to rent may recover from the purchaser of the crop, or any part thereof, with notice of the lien, the value of the crop purchased, to the extent of the rent due and damages." 15

§ 1697. Plaintiff's right to possession

The gist of the action of replevin is plaintiff's right to immediate possession of the personal property in controversy at commencement of action by reason of his being the owner or having a special interest therein.16

Plaintiff must recover on the strength of his own title or right of possession, and defendant can defeat the action by showing title in a third person.17

13 Rev. Laws 1910, § 3807.

The assignee of a note given in payment of rents is without authority to distrain for rent unless he is also assignee of the reversion. Fuller v. Rippie, 62 Okl. 129, 163 p. 127..

The common-law right to distrain for rent is violative of the condition and wants of the people of Oklahoma, and is repugnant to the genius and spirit of its institutions, and is not in force there. Smith v. Wheeler, 44 P. 203, 4 Okl. 138.

14 McFall v. Elmore, 94 P. 545, 20 Okl. 443.

15 Rev. Laws 1910, § 3808.

16 First Nat. Bank of Wellston v. Kreuzberg, 75 Okl. 97, 181 P. 717.

17 Robb v. Dobrinski, 78 P. 101, 14 Okl. 563, 1 Ann. Cas. 981; Bank of Buffalo v. Crouch (Okl.) 174 P. 764; Tulsa Rig, Reel & Mfg. Co. v. Arnold, 64 Okl. 160, 166 P. 135.

Where, in replevin, plaintiff fails to show completed sale to him or any other right to possession, he cannot recover. Singer Mfg. Co. v. Godding, 131 P. 572, 89 Kan. 396.

Right to possession.-Plaintiff bank, which acquired title to wheat by paying draft attached to bill of lading, and which, after purchaser refused to

The maker of notes is not the owner nor entitled to the immediate possession thereof unless the same have been paid or canceled by a decree of court, or for other reasons have become absolutely void and invalid as obligations in the hands of the payees or of third parties; and an action of replevin by the maker for the recovery of the possession thereof will not lie.18

One who holds the full legal title to personal property, the beneficial ownership of which he shares with another, may in his own name maintain replevin to recover possession from a stranger.1

§ 1698. Detention by defendant

Replevin lies only in the case of a wrongful detention existing when the suit is commenced.20

pay, took reassignment from its transferee, after wheat had been attached by third party, and thereafter sold it, was not entitled to recover possession in replevin against attaching officer. Oklahoma State Bank v. Hicklin, 164 P. 257, 100 Kan. 301.

In replevin it is immaterial whether right of possession is claimed by mortgagee under his chattel mortgage or under his purchase of property at sale under conditions of mortgage. Emerson-Brantingham Implement Co. v. Willhite, 102 Kan. 56, 169 P. 549; Sehrt-Patterson Milling Co. v. Levan, 58 P. 275, 9 Kan. App. 523.

Where plaintiff sold to defendant six head of cattle, to be kept for three years, for which he was to receive one-half of the increase, though defendant unlawfully sold part of the cattle, replevin could not be maintained to recover the possession of those remaining in the possession of defendant before the end of the three years. Penton v. Hansen, 73 P. 843, 13 Okl. 450. Instructions examined, and held to substantially state the law applicable to the case, where the question was as to the right of a mortgagee to take possession of the property when he deems himself insecure. Wertz v. Barnard, 122 P. 649, 32 Okl. 426.

18 Olson v. Thompson, 48 P. 184, 6 Okl. 74; Id., 52 P. 388, 6 Okl. 576 19 McDonald v. Daniels, 92 P. 51, 76 Kan. 388.

After sale by a mortgagee of mortgaged personalty out of possession, the mortgagee or the purchaser could recover possession by appropriate action. Continental Gin Co. v. Pannell, 61 Okl. 102, 160 P. 598.

20 Redinger v. Jones, 75 P. 997, 68 Kan. 627.

The defendant, in his answer, admitted the detention, and justified the same by levy of execution thereon; and, when plaintiff rested, he demurred to the evidence, on the sole ground that, by the receipt of the plaintiff, it appeared he did not detain the property, and the demurrer was sustained upon that contention. It was error to render a judgment in his favor for a return of the property or its value. Hursh v. Starr, 49 P. 618, 6 Kan. App. 8.

In replevin against a levying officer, where the evidence of the plaintiff proves prima facie that he is the owner of the property, that he demanded possession of the property from the defendant before bringing the suit, but it is incidentally developed by cross-examination that, at the time the levy