Stimson's ex'X v. Tharp
| Decision Date | 12 November 1940 |
| Citation | 284 Ky. 389 |
| Parties | Stimson's Ex'x v. Tharp. |
| Court | United States State Supreme Court — District of Kentucky |
3. Appeal and Error. — In action by executrix to recover possession of a team of mules, harness, and wagon, where it appeared that defendant bought the property from third persons and that decedent paid for it under an agreement that he should deduct purchase price from what he would be owing defendant on a logging contract, whether only part of money was retained and defendant recognized that decedent owned and was entitled to the property was for trial court under conflicting evidence.
4. Pleading. — Where an amended answer stated that original pleading was an error of counsel and that the amendment was made to conform to the proof, the filing of the amended answer was proper as in furtherance of justice (Civil Code of Practice, sec. 134).
5. Pleading. — In action to recover possession of a team of mules, harness, and wagon, defendant's pleading traversing petition setting up his own rights in property, and praying that it be returned to him or that he recover its value and for any and all other relief to which he might be entitled, was in the nature of an action against plaintiff for return of property and damages for taking and withholding it as allowed by statute, and, issues having been joined on the allegations, the failure to denominate either the original or the amended answer a counterclaim was waived (Civil Code of Practice, sec. 388).
6. Judgment. — In executrix' action to recover possession of a team of mules, harness, and a wagon, even if evidence established that defendant had not repaid money advanced by decedent and that his estate had an equitable lien on property to secure repayment, the petition did not authorize judgment declaring and enforcing such a lien where the cause of action was strictly limited to one of claim and delivery.
7. Replevin. — Though successful defendant's claim for damages in action to recover possession of a team of mules, harness, and a wagon might have been specifically made in his answer and counterclaim and brought down to date of restitution by amendment, defendant took an appropriate course to secure consideration of his claim by filing a motion on the day judgment was entered that the court hear evidence and fix damages suffered by him through plaintiff's taking and detention of property under an order of delivery 15 months before (Civil Code of Practice, secs. 180 et seq., 330, 388).
Appeal from Carlisle Circuit Court.
R.O. Willingham for appellant.
Robert L. Geveden for appellee.
Before L.L. Hindman, Judge.
Affirming in part and reversing in part.
D.C. Stimson sued Luther Tharp to recover possession of a team of mules, harness and a wagon, claiming that he had let the defendant have them under an option to buy which had not been exercised according to its terms. The plaintiff executed bond and obtained the property by a writ of delivery. Section 180 et seq., Civil Code of Practice. Stimson died and the case was revived by his executrix. Tharp pleaded that he had bought, the property from Stimson for $425, and had paid him through the retention of money due for labor in hauling and loading timber. On defendant's motion and without objection, the case was transferred to the equity docket. A special commissioner recommended that judgment go for the defendant, and the court, overruling exceptions thereto, rendered such a judgment. The plaintiff has prayed an appeal and the defendant moved for a cross-appeal from an order refusing to hear evidence and give judgment on his claim for damages suffered by reason of the detention of the team and wagon during the period they were held by the plaintiff under the order of delivery.
It was not definitely proved that Stimson ever had title to the property. It appears that Tharp bought the team and harness from Barclay and the wagon from Page, and that Stimson paid for them under an agreement that he should deduct the purchase price from what he would be owing Tharp on a logging contract. Plaintiff's proof tended to show that this had not been done or, at least, that only part of the money was retained, and that Tharp had recognized that Stimson owned and was entitled to the property. The evidence is in conflict on these points. However that may be, nearly all the proof is that Tharp bought the property and Stimson merely advanced the money with which to pay for it. An action of claim and delivery is in ordinary and is but a substitute for the common law action of replevin. The plaintiff must recover on the strength of his own title, that is, prove a general or special ownership entitling him to lawful possession. Daniel v. Daniel, 6 B. Mon. 230, 45 Ky. 230; Hibbard v. Estridge, 156 Ky. 122, 160 S.W. 746; Halcomb v. Phipps, 194 Ky. 648, 240 S.W. 363. The fact of payment or nonpayment of the purchase price has no bearing on the question of title unless payment was a condition to passing title, and that was not established in this case. Gowin v. Lake, 243 Ky. 442, 48 S.W. (2d) 1059. We concur in the judgment of the court in favor of the defendant on the merits of the case.
The appellant argues that it was error to permit the defendant to amend his answer and retract his verified pleading that he had bought the property from the plaintiff, Stimson, and to plead that he had bought it from other parties. It appears the amended answer was lodged with the commissioner during the taking of depositions. It states that the original pleading was an error of counsel and that the amendment was made to conform to the proof. We think the filing of the amended answer was proper as being in furtherance of justice. Section 134 of the Civil Code of Practice.
The defendant traversed the petition, set up his own rights in the property, and prayed that it be returned to him or that he recover its value and "for any and all other relief to which he may be...
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