ON RRHRARING.
McCuuuoch, J.The complaint in this cause alleges a special ownership in the plaintiff of the property sued for, and sets forth the facts upon which the claim of ownership is based, i. e., the chattel mortgage executed by the defendant, and “that plaintiff is the owner and holder of said note and mortgage for value.” The answer contains no denial of the execution of the note and mortgage, nor that the plaintiff is the owner and holder thereof, but it denies generally that plaintiff is the owner or entitled to the possession of the property, and pleads payment of the note secured by the mortgage. No objection was made at the trial to the introduction of the mortgage, as evidence of plaintiff’s title to the property. Was the assignment of the mortgage an issue in the case?
In replevin suits, where plaintiff claims absolute title to the property sued for, it is only necessary to allege title generally and right of immediate possession, and the answer may be equally general in its denials; but where the plaintiff claims possession under a special ownership, he must set forth the facts upon which his claim of special ownership is based. Cobbey, Replevin, § 601; 18 Enc. Pl. & Pr. pp. 537, 538; Tuthill v. Skidmore, 124 N. Y. 148; Dryerle v. Hunt, 50 Mo. App. 541; Paxton v. Learn, 55 Neb. 459; Thompson Mfg. Co. v. Nicholls, 52 Neb. 312. Where the plaintiff alleges a special ownership in the property, the defendant must, in order to put in issue the allegations of such .special ownership, deny specifically the allegations of fact upon which the claim of ownership is based. Kirby’s Dig. § 6137; Cobbey, Replevin, § § 746, 747; Sargent v. Chapman, 12 Col. App. 529, 56 Pac. 194.
Counsel for appellee urge that, under the ruling of this court in Person v. Wright, 35 Ark. 169, it is not necessary fo'r the complaint to contain a statement of facts constituting special ownership, nor for the answer to contain a specific denial thereof. The court in that case said: “It was not necessary for plaintiffs to have shown in their complaint the means by which they acquired title. It would have sufficed to allege their ownership, general or special; their right to the possession; and that defendant unlawfully detained it after demand, or was holding and using it as his own adversely to their right. These were the material allegations necessary to show cause of action, and all that the defendant was required to answer. He does so, and puts in issue their ownership and right to possession.” We do not think that decision is in conflict with the views expressed herein.
It follows that, as the question of the ownership of the mortgage by plaintiff, as alleged in the complaint, was not denied by the defendant in his answer, it was not an issue in the trial below, and this court erred in holding that the failure of the plaintiff to prove an assignment to him of the mortgage warranted the court below in directing a verdict for the defendant.
Therefore,- the rehearing is granted, and the judgment is reversed, and the cause remanded for a new trial.