The intestate, by proceedings in replevin, took from the possession of the assignor of the plaintiff, the property now in question. By that action he invited an issue upon his title to the property, and his right to retain that possession which he had by those proceedings obtained.
The assignor of the plaintiff, defendant in that action, put in issue that title, and that right of possession, and, also, the averment that he wrongfully detained the property.
On the trial, although the then plaintiff established his right as to other property included in the replevin, he wholly failed as to the property now in question. It is clear, therefore, that, had the former replevin embraced no other property than that now sued for, judgment must have been rendered for the defendant therein for his costs. According to the decision of the Supreme Court in Yates v. Fassett (5 Denio, 21), he could not, in that event, have had any other judgment. Not having pleaded title or right of possession in himself or in another, he could not have had judgment for the return of the property. So here, as he had not pleaded title, he could not, according to the intimation in that case, have had judgment for the return of the property now in question; and, under the Code, it is where the defendant by his answer claims a return of the property that such a judgment can be given. If this be correct, then the judgment in the former action is conclusive upon the plaintiff therein (this defendant's intestate) as to one, at least, of the facts which, in respect of the property now in question, constituted defense admissible under those pleadings, to wit, either that the plaintiff had no title to the property, or that the defendant did not wrongfully detain it. The mere failure of the then plaintiff to recover in that action for this property (and that is all that the judgment-record discloses), would not determine upon which of these grounds the judgment was rendered.
It is obvious that a judgment in replevin, founded on a verdict finding simply and only that the defendant did not wrongfully detain the property described in the complaint, would not establish that the defendant owned the property, *Page 381 or that the plaintiff did not. On the other hand, a verdict that the plaintiff had no title, and judgment thereon, would be conclusive upon such plaintiff in any subsequent action in which it was attempted to be shown that he had title.
The effect of a judgment for the defendant in such a replevin suit, when his answer is a mere denial of the plaintiff's allegations, must, therefore, depend upon extrinsic evidence. If, in that suit, the property was taken from the defendant's possession, and was delivered to the plaintiff, and the question actually tried was whether the plaintiff had title, then a verdict for the defendant is conclusive against the plaintiff that he had no title, and he cannot be afterward heard, in an action with the same party, to impeach that verdict.
Now, on the trial of the present action, the plaintiff proved such a judgment on a finding of a referee, in substance that the intestate (then plaintiff) had failed to prove allegations in his complaint in respect of the property now in question. The plaintiff then proved that the property was in possession of Mallory (then defendant), and that the then plaintiff (Coon) took the property from him by the process.
The defendant then offered to prove title in himself by "the same evidence" by which he had endeavored "to establish his title to the property now in litigation," on the former trial between the same parties, in which he had recovered other property embraced in that suit.
I think this evidence was clearly inadmissible; it was a plain endeavor to litigate a question which was in issue between the same parties on the former trial, a question upon which the plaintiff then (now defendant) had the burden of proof, and which was in fact litigated, and in which he failed. Upon elementary principles applicable to all verdicts, the plaintiff in that action was concluded.
It is said, however, that, inasmuch as the defendant in the former action (the plaintiff's assignor) might have set up his title in the former action, and had a judgment for the return, and did not do so, he also is barred, and cannot maintain this action to recover the possession. *Page 382
I concur fully in the decision in Yates v. Fassett (5 Denio, 21), that no such consequence results from the failure of the defendant to obtain such judgment. He was put upon his defense, and, if he defended himself against the claim to this property, he might have entitled himself to a judgment affirming in its character that this property be returned to him, but he was not bound to do so. Possibly, upon the then state of the pleadings (according to Yates v. Fassett), he could not, by any proof, have entitled himself to such a judgment. At all events the question of his title to this property was not decided against him. It may be conceded that a defendant, though he succeeds in defending himself, does not always, whatever may be his pleading, entitle himself to a judgment for a return, —e.g., where the plaintiff proves title and right of possession, but the defendant shows that his possession was originally without wrong, and defeats the action, because there was no demand before suit brought. (Reese v. Van Dyke, 5 Denio, 616.)
But the fact that he has no affirmative judgment for a return does not, per se, show that he is not entitled to the possession. The illustration given in Yates v. Fassett is apt and conclusive. A defendant in an action may, in a proper case, recoup his damages, and may obtain his affirmative judgment, but the fact that he omits to recoup does not bar his cross action.
I think the order granting a new trial should be affirmed, and, pursuant to the defendant's stipulation, judgment absolute should be entered for the plaintiff, with costs.