§ 1699. Defendant's possession Replevin cannot be maintained against one not in the actual or constructive possession of the property at the commencement of the action; 21 but the owner may replevin chattels levied on by an officer not in possession, if the officer could take possession as against a wrongful taker.22 Where defendant in replevin had confederated with others to detain the property from plaintiff, the owner, and deprive him of possession, a judgment against defendant was not erroneous, though the property, at the commencement of the action, was in the actual possession of a confederate, from whom defendant could have obtained it.28 § 1700. Conditions precedent Where a borrowing bank after insolvency turned over additional assets to a lender as security, it was not a condition precedent to the right to maintain replevin that the borrower tender back the securities surrendered by the lender when the additional securities were turned over.24 § 1701. Demand for return Where, in replevin, defendant contests the action, the writ is a sufficient demand, and defending the suit a refusal.25 was made, the plaintiff gave a receipt to the defendant, by which he undertook to safely keep the property for the defendant, it is error to sustain a demurrer thereto, on the ground that the defendant did not, at the commencement of the suit, have or detain the property from the plaintiff. Hursh v. Starr, 49 P. 618, 6 Kan. App. 8. 21 Robb v. Dobrinski, 78 P. 101, 14 Okl. 563, 1 Ann. Cas. 981. Replevin cannot ordinarily be maintained against one not in possession at commencement of suit. Carpenter v. Mead, 60 Okl. 127, 153 P. 658. Replevin will not lie against a person who has sold the property sought to be recovered, and parted with the possession before the commencement of the action. Davis v. Van De Mark, 25 P. 589, 45 Kan. 130. 22 Francis v. Guaranty State Bank of Texola, 44 Okl. 446, 145 P. 324. 28 Meixell v. Kirkpatrick, 6 P. 241, 33 Kan. 282. 24 Citizens' State Bank of Chautauqua v. First Nat. Bank of Sedan, 157 P. 392, 98 Kan. 109, L. R. A. 1917A, 696. 25 Maddox v. Dowdy, 31 Okl. 169, 120 P. 651; Hutchings v. Cobble, 30 Okl. 158, 120 P. 1013. When an officer levies an execution on the property of one not named in the writ, a demand is not necessary by the owner before bringing replevin. Burchett v. Purdy, 37 P. 1053, 2 Okl. 391. Where defendant in replevin asserts title to the property in himself in op A claim by a person in possession of property, that he is the owner, made on its seizure under execution as the property of a third person, is not equivalent to a demand for a return of the property, so as to enable him to maintain replevin in a case where demand is position to that claimed by plaintiff, or where he alleges such title in his answer, no proof of demand and refusal is necessary. Fuller v. Torson, 56 P. 512, 8 Kan. App. 652. To maintain replevin, even where the original taking was not wrongful, a demand for possession is not a condition precedent. Citizens' State Bank of Lawton v. Chattanooga State Bank, 101 P. 1118, 23 Okl. 767. Where defendant in lawful possession does not tender the property but contests the action, the writ will be a sufficient demand, and defending the suit a refusal. Id. Kansas cases.-When defendant, in replevin, bases his defense on title and right of possession in himself, and does not rely on want of demand, and it appears that a demand would have been unavailing, proof of demand is not required. State Bank of St. John v. Norduff, 43 P. 312, 2 Kan. App. 55. Where property in possession of its owner is levied on as the property of another, the owner need not, before bringing replevin, make a demand therefor. Burgwald v. Donelson, 43 P. 100, 2, Kan. App. 301. Where, shortly before the action was commenced, defendant took the property without plaintiff's consent claiming it as his own, a demand was unnec essary. Jordan v. Johnson, 42 P. 415, 1 Kan. App. 656. In an action to recover personal property, the possession of which it is claimed was obtained by false and fraudulent representations, a demand is not necessary before commencing the action. Salisbury v. Barton, 66 P. 618, 63 Kan. 552. Where defendant has never conceded the right of plaintiff to the possession of the property, but has denied the claim and right of plaintiff thereto, and has otherwise shown that a demand would be unavailing, proof of demand and refusal is unnecessary. Barton v. Mulvane, 52 P. 883, 59 Kan. 313. Where the defense in replevin is founded on title in a defendant, and the right of possession incident thereto, it is not necessary to prove demand and refusal. Greenawalt v. Wilson, 34 P. 403, 52 Kan. 109. Where defendant in replevin asserts title to the property in himself in opposition to that claimed by plaintiff, or where he alleges such title in his answer, no proof of demand and refusal is necessary. Chapin v. Jenkins, 31 P. 1084, 50 Kan. 385. When the petition in an action of replevin against a sheriff was filed, and the summons and order of delivery were issued, the sheriff had the actual possession of the goods. The order of delivery was set aside on account of irregularities, and an alias order issued, under which the goods were ordered by the court to be turned over to defendant. He did not file any disclaimer, but attempted to show title and right of possession in himself, under an execution. Held, that no proof of demand and refusal was required, and it was not material that defendant did not have the goods in his possession when the last order of delivery was issued and served. Bliss v. Couch, 26 P. 706, 46 Kan. 400. A defendant, wrongfully in the possession of property, which he has shifted to another defendant, and attempted to defeat those entitled to the posses necessary; 20 that is, want of prior demand will not defeat a right to immediate possession of personalty, but only affects the question of costs in replevin where defendant's original taking is not wrongful and he does not resist the right.27 A demand for the return of the property before bringing replevin is not necessary, where the property was exempt and sold under execution. 28 § 1702. Defenses In an action to replevin property taken forcibly and without the owner's consent, it is no defense that the owner was indebted to defendant.29 Where attaching creditors dismiss their attachment as to the mortgagee of the property after the latter has replevied the same, they cannot assert that replevin was not maintainable by him, because begun before the attachment proceedings were determined.3° A defendant wrongfully in the possession of property, which he had shifted to another defendant, and attempted to defeat those entitled to the possession, and whose defense is based on grounds. inconsistent with the right of possession in the plaintiff, is not in a position to insist that he did not unlawfully detain the property, because he had not actual manual possession when the action was begun.31 Defenses must ordinarily be pertinent to the property involved. sion, and whose defense is based on grounds inconsistent with the right of possession in the plaintiff, is not in a position to insist that a demand has not been made of him. Schmidt v. Bender, 18 P. 491, 39 Kan. 437. A demand of personal property is not a prerequisite to the right to maintain an action for the recovery thereof, when the defendant bases his defense on title in himself, and the right of possession incident thereto, and does not rely on want of demand, and it appears that a demand would have been unavailing. Raper v. Harrison, 15 P. 219, 37 Kan. 243. 26 Chandler v. Colcord, 32 P. 330, 1 Okl. 260. 27 Wall v. Rouse, 49 Okl. 544, 153 P. 1112. 28 Byers v. Ingraham, 51 Okl. 440, 151 P. 1061. 29 Ray v. Navarre, 47 Okl. 438, 147 P. 1019. A person who wrongfully takes and detains personal property of another cannot plead a set-off as a defense in replevin by the owner. Kennett v. Fickel, 21 P. 93, 41 Kan. 211. 30 Hasie v. Connor, 37 P. 128, 53 Kan. 713. 31 Schmidt v. Bender, 18 P. 491, 39 Kan. 437. It is no defense that a defendant in possession is acting for a third party.32 In replevin by a claimant to recover property from an officer taken on attachment against such claimant, a showing that the attachment is issued at the suit of a bona fide creditor, and that the attachment process is valid, is sufficient to entitle the officer to hold possession until a better right is shown.38 In replevin against an officer who justifies under a writ of attachment against the property of a third person on account of the fraudulent transfer by him to plaintiff to defeat his creditors, it is a material element of the defense that the relation of debtor and creditor exists between the attachment plaintiffs and the fraudulent grantor, and the question as to whether such transfer was fraudu lent is immaterial until the officer has shown that he represents creditors.84 Where defendant in replevin claims to hold the property under a levy made by virtue of an order of attachment, and no copy of the order appears in the record, and no statement that one was issued appears in the transcripts of the justices of the peace, and nothing appears to show the possession of defendant legal, it was not error to instruct for plaintiff.35 § 1703. Estoppel By executing a redelivery bond, and procuring a return of the property thereunder, defendant is estopped from denying his pos 32 In an action of replevin to recover the immediate possession of certain stacks of oats, the plaintiff offered evidence tending to prove that she had sown and harvested the oats on land of which she had been in possession several years. Held that, in such an action, the defendants had no right to show that the plaintiff had made a settlement and entry of the land for the benefit of her father, and therefore that her possession was fraudulent as against the government. Barnhart v. Ford, 15 P. 542, 37 Kan. 520. Three persons, acting together, wrongfully took the possession of and deprived the owner of several stacks of oats, and, in an action of replevin brought for the immediate possession of the property, all the defendants filed an answer containing a general denial. Held, that it is no defense for two of the parties that they acted merely as employés in the transaction for the benefit of the third. Id. 33 Bruce v. Squires, 74 P. 1102, 68 Kan. 199. 34 Marrinan v. Knight, 54 P. 656, 7 Okl. 419; Dunn v. Overton, 83 P. 715, 15 Okl. 670. 35 Goodwin v. Sutheimer, 55 P. 486, 8 Kan. App. 212. 36 session at the commencement of the action. That personal property is in possession of and used by another does not estop the owner from asserting title."" Irregularities and defects in the affidavit in an action in replevin, sufficient to give ground for dismissal of an action, if timely objections had been made, will be waived, and the court will obtain jurisdiction to try the case, if the defendant answer to the merits without raising objection thereto.38 An action of replevin to recover chattels levied on by a sheriff as the property of another, is not an action against an officer for misconduct in office, and the probate court has jurisdiction of such action where the value of the property does not exceed $1,000.39 § 1705. Plaintiff An agent authorized to exchange a chattel for realty who delivered it to one with whom he contracted for conveyance of land to his principal is not the real party in interest, and so not entitled, in his own name, to replevin the chattel.** One in actual possession of automobile owned by adult daughter and having right to use it at will is a real party in interest to maintain replevin against one claiming possession and ownership through trade with him."1 41 86 Jordan v. Johnson, 42 P. 415, 1 Kan. App. 656. 87 Alexander v. Busch (Okl.) 166 P. 900, L. R. A. 1918E, 125. The surety of a defendant's redelivery bond is not estopped from claiming an interest in the property by virtue of a chattel mortgage executed to him by the defendant. Rathbone v. Boyd, 2 P. 664, 30 Kan. 485. 38 Hutchings v. Cobble, 30 Okl. 158, 120 P. 1013. 89 Walters v. Ratliff, 61 P. 1070, 10 Okl. 262. 40 Essex v. Fife (Okl.) 159 P. 1009. 41 Essex v. Fife (Okl.) 168 P. 814, HON.PL.& PRAC.-101 (1601) |