The decision of this case depends upon the correctness of the referee's ruling in admitting proof of title to the property in question in Coon. I think that he committed an error in his decision, and that the defendant was barred by the record, in the action brought by Coon against Mallory, from showing such title, because it had been disposed of by the decision and judgment in that case.
In the action of replevin brought by Coon against Mallory, the complaint alleged that the defendant became possessed of, *Page 383 and wrongfully detained, the property claimed, and the answer denied each and every allegation without making any claim for a return of the property.
The Code (§ 377) provides, that, where the property has been delivered to the plaintiff, and the defendant claims a return thereof, judgment may be rendered for a return of the property, or the value thereof in case a return cannot be had, and damages for the taking and withholding of the same. This provision altered the Revised Statutes, which gave the defendant the right to elect either to take judgment for the return, or for the value of the property, at his option. (2 R.S. 531.) As it does not appear that any claim was made by the defendant for a return of the property, he was not entitled to a judgment to that effect.
It is insisted by the defendant's counsel, that the denial in the answer put in issue the title to the property, and, in determining that question, the referee could only decide the whole issue by finding the fact of the defendant's title and by rendering a judgment for its restoration.
I think this position is not a sound one, and it is in direct conflict with Yates v. Fassett (5 Denio, 21). The case cited was an action of trover to recover the value of a canal-boat which had been replevied by the defendant, of the plaintiff, and another party in a previous action, and a judgment rendered in favor of the defendant for costs, in which action the title was litigated. It was held that the plaintiff could recover, and where a party, sued for replevin in the detinet, pleaded onlynon detinet, and had a verdict in his favor, and a judgment for costs, but not a return, that he could maintain an action against the plaintiff in the first suit, although he might have so pleaded as to entitle him to a return of the value of the property, and had omitted to do so. The whole subject is fully discussed and elaborately considered, and the learned judge who wrote the opinion says, "I see no reason why a defendant in replevin may not confine himself to his defense in non detinet, withholding any special plea of title to the property, and, in case the verdict is against the plaintiff, present a claim of title in *Page 384 another suit." This, I think, covers fully the question here presented, and must be controlling in this case.
We have been referred to several other cases which, it is claimed, are in conflict with these views. In Pierce v. VanDyck (6 Hill, 613), it was decided that a defendant in a replevin suit, who succeeds at the trial under a plea of nondetinet, on the sole ground that the property should have been demanded before suit brought, is not entitled to judgment for a return, or for the value of the property, and that, in order to entitle him to judgment for a return, under the plea of nondetinet, he must succeed on the two branches of the issue upon that plea, the detention and the property of the plaintiff in the goods. And, even then, it is said merely that it may be that the defendant should have a return, although the statute militates against that conclusion. Without deciding the precise question, it in no way interferes with the principle decided in the late case of Yates v. Fassett.
In McKnight v. Dunlop (4 Barb. 36), it was held, that a defendant in a plea of non detinet in replevin will be entitled to a return, where the jury find that the plaintiff has no property in the goods replevied, and it was said, that, whenever a defendant in a replevin is entitled, under the pleadings, to try the title to the property, and, in case he succeeds, is entitled, under such pleadings, to a return of the goods, he is bound to try the title in such suit, and to take a judgment therein for a return, or the value of the goods. No allusion is made to the case of Yates v. Fassett, and the learned judge, in his opinion, refers to Pierce v. Van Dyck, as intimating, that a defendant, in a plea of non detinet, will be entitled to a return, where the jury find that the plaintiff has no property in the goods. I have already stated what the intention was, and it is manifest, that, so far as it may be in conflict with the latter case, it cannot be considered as binding authority. As the defendant in the replevin suit did not claim a delivery of the property belonging to him, he would not be entitled, under the pleadings, to a return of the property, and, hence, the rule laid down has no application in the case before us. But, if the answer of the defendant *Page 385 in the replevin suit can be considered as equivalent to a plea ofnon detinet, and the cases referred to and relied upon by the defendant establish, that such a plea requires the defendant to obtain a verdict, and judgment for a return of the property, then they are in conflict with Yates v. Fassett which has never been directly considered and overruled, and which, I think, should stand as the better exposition and elucidation of the principle involved, and as a well considered and sound decision of the question.
In the replevin suit, the defendant had possession of the property; was prima facie the owner, and Coon was bound to establish title in himself as against the defendant in that action, before he could recover. It will be seen, that this involved the whole question of title, whether Mallory was lawfully in possession, and Coon had a title as against the possession. Proof of Mallory's title was not demanded, as he would have a right to establish title in a third party, and, being in possession, Coon's title was the essential issue litigated. In failing to obtain a judgment in his favor, the title of Coon was judicially determined against him, and the question must be considered as res adjudicata. The referee clearly erred in admitting the testimony objected to.
The point taken, that the plaintiff's remedy is in the bond, and that it becomes substituted for the goods, cannot, I think, be sustained, as no judgment had been given for a return of the property, in accordance with the condition of the undertaking, there was no forfeiture, and no recovery could be had.
As these considerations dispose of the case, it is not necessary to discuss some other points made on the trial. The judgment of the General Term reversing the judgment entered on the referee's report must be affirmed, and judgment absolute entered in favor of the plaintiff.
GROVER, HUNT and CLERKE, JJ., not voting.
Judgment affirmed. *Page 386