McDonald v. Daniels

• Decision Date: 05 October 1907
• Docket Number: 15,180
• Citation: 76 Kan. 388,92 P. 51
• Parties: D. J. MCDONALD et al. v. WILLIAM DANIELS
• Court: Kansas Supreme Court

92 P. 51

76 Kan. 388

D. J. MCDONALD et al. v. WILLIAM DANIELS

No. 15,180

Supreme Court of Kansas

October 5, 1907

Decided July, 1907.

Error from Jackson district court; MARSHALL GEPHART, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. REPLEVIN--Parties--Beneficial Owner Need Not be Joined. 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 an action to recover the possession thereof from a stranger.

2. REPLEVIN--Allegation of General Instead of Special Ownership--Objection Insufficient. Where a plaintiff in replevin pleads general ownership, and at the trial it is developed that while he holds the full legal title to the property he is obliged to account to another for a portion thereof, the question whether it was not necessary for him to have set out in his petition the full facts regarding his ownership cannot be raised by an objection that such facts show that he is not the real party in interest and is not entitled to recover all of the property.

Lathrop Morrow, Fox & Moore, and B. C. Mitchner, for plaintiffs in error.

Charles Hayden, for defendant in error.

OPINION

MASON, J.:

William Daniels brought an action against D. J. McDonald to recover the possession of personal property described as a grading outfit, which the latter had caused to be seized upon an attachment against Ben Daniels, the father of William, the sheriff being joined as a defendant. The plaintiff recovered judgment and the defendants prosecute error.

The petition was drawn in general terms, the only allegation with respect to the title of the property being that the plaintiff was its owner. The preliminary statement made in his behalf to the jury, however, developed that his claim was that his title originated in this way: The property was at one time owned by his father, who executed to him a chattel mortgage to secure a debt which was therein described as owing to him, but which in fact included a sum which his father owed to his sister; afterward, in satisfaction of the mortgage, his father gave him a bill of sale of the property, under which he took possession, holding it until it was taken from him by the sheriff. The plaintiff's evidence was in accordance with this statement. The defendants now contend that no recovery should have been had, first, because under this statement the plaintiff was only a part-owner of the property and could not maintain replevin without joining his co-owner, his sister, and, second, because the title disclosed by the evidence was special and was therefore not provable under an allegation of general ownership.

The first contention fails because the plaintiff was not merely a joint owner with his sister. He had the full legal title, and the fact that he was under an obligation to account to another with respect to a part of the property did not prevent his maintaining as sole plaintiff an action against a stranger for its possession. This was determined in John C. Douglas v. Cora Wolf, and others, 6 Kan. 88, where it was held that "a person buying bonds for another, and buying them in his own name, may maintain an action in his own name for the recovery of the possession of them." (Syllabus.) In the opinion it was said:

"The plaintiff's testimony tended to show a general and also a special ownership of the bonds in himself, and a right to the possession thereof. . . . If Douglas bought the bonds for Harwood, with Harwood's money, and bought them in his own name, then he was entitled to the possession, and had an interest in the bonds, because, by reason of the purchase in his own name, he had incurred a responsibility to Harwood greater than if bought in Harwood's name. He stood charged with Harwood's money. If he bought the bonds for him and in his name, then he might say to Harwood, 'I have bought your bonds, but they have been seized by the sheriff without fault of mine; you must look to him for them.' If bought in the name of plaintiff, he was responsible to Harwood for their delivery, and had to repossess himself of them by action to enable him to make such a delivery." (Pages 91, 93.)

The proposition involved in the second contention is more open to doubt. The syllabus to Ward v. Ryba, 58 Kan. 741, 51 P. 223, reads:

"An agent who takes in his own...