The opinion of the Court was prepared by
Tenney J.This is an action of replevin for a yoke of steers. The defendant pleaded the general issue of non cepit, and filed a brief statement, alleging therein that the property was in himself.
*136The defendant was once the owner of the steers, and sold them to the plaintiffs, taking for the purchase money a note secured by a mortgage of the steers ; it was agreed that the plaintiffs should have possession of the steers till the maturity ,'of the note. Sometime after the note was payable, the larger part thereof was received by the defendant; the balance remained unpaid for about two years, when the defendant made a demand, and on the reply of one of the plaintiffs, that he could not pay it, the defendant demanded the steers, and passed the bill of sale and note, being upon the same paper, to one of the plaintiffs, who examined them and. in presence of. the other plaintiff, pointed to the steers, and said, “ there are your steers, take them,” and on inquiry made by the defendant, told him he turned them out as his, the defendant’s, property, and shortly after repeated the language, and the steers were driven away by the defendant. It appeared from the plaintiffs’ evidence, that within ten days after the steers were driven away by the defendant, he said to a third person, without the knowledge of the plaintiffs or any design that it should be communicated to them, that he did not wish to take any advantage of them, that all he wanted was his right, which was the balance due upon the note. The plaintiffs were informed of this conversation, and in ten days after the defendant took away the steers, made a tender of that balance and demanded the steers; the defendant refused to deliver them, saying that the note was paid by them; and afterwards this action was commenced.
The Judge ruled, that the plaintiffs were not required, after offering proof of the taking, to show property in themselves; and instructed the jury, that if they believed the steers were delivered to the defendant in the manner stated; and also believed that the defendant did hold the conversation afterwards, as appeared from the testimony introduced by the plaintiffs, the latter was a waiver of the forfeiture and restored to the plaintiffs the right of redeeming the steers by the payment or tender of payment of the balance of the note, provided the *137tender was made within a reasonable time after the demand was made of the balance of the note by the defendant.
On an issue taken upon the plea of non cepil, it is incumbent on the plaintiff to prove the taking alleged, but the defendant cannot question the plaintiffs’ title; that must be derived in a special plea or brief statement. 1 Chitty’s Pleadings, 159; Simpson v. McFarland, 18 Pick. 427. The requirement in the statute, which was in force when this action was first tried, that the general issue should in all cases be pleaded, cannot dispense with the necessity, on the part of the defendant, of showing the property to be that of the one who is alleged in the brief statement to be the owner. And if the title of the plaintiif could not. be disputed under this issue, previous to the statute, it is not seen how it can be done, with any propriety, since its passage.
Another ground of exception is, that the question, whether the tender and demand of the steers were made in a reasonable time, was left to the jury. This was a question of law upon the facts, of which facts the jury were the judges. It often happens, that facts are in dispute, and what is reasonable time, is a mixed question of law and fact. In the case at bar, there was no controversy in this particular, and the jury have found that the tender and demand were made within a reasonable time. And in view of all the facts, the Court are not satisfied, that the jury erred in so deciding. If that which is the province of the Court to determine is submitted to the jury, and their decision is correct, a new trial will not be granted, when the same result must take place.
The demand of payment of the balance of the note at the time, when the defendant took away the steers, being a long time after the money was due, was a waiver of the forfeiture of the property mortgaged. It was however the right of the defendant, at any time after the note became payable, to take the property into his own possession, he not having relinquished the power to do so, longer, than the maturity of the note. It does not appear, that the note and mortgage were given up to the plaintiffs, when the steers were taken away by the defend*138ant though they were passed into the hands of one of the plaintiffs, before they turned out the steers. If there was a full understanding of the parties that the steers were taken in discharge of the note, and that no right of redemption remained in the plaintiffs, the property vested absolutely in the .defendant, and his title was no less perfect, than it was before he first parted with it, and nothing short of a repurchase would restore to the plaintiffs their former rights.
But if the property was demanded by the defendant and delivered by the plaintiffs, that it might be holden only as security and to hasten or enforce the payment, and the note was undertood by the parties to be outstanding and unpaid, of which facts the conversation with third persons may be regarded as evidence, a payment or tender, and a demand of the property within a reasonable time by the plaintiffs, would entitle them to a restoration. What the intention of the parties was, when the steers were delivered to the defendant and driven away by him, was a fact which we think the jury should have settled, and the right to have it so determined was never’ relinquished by the defendant.
Exceptions sustained.