delivered the opinion of the Court:
The declaration in this case contained two counts: one for the taking, and one for detaining, the property described in the writ.
The pleas were, first, non detinet; second, non cep it; and third, property in the defendant, with issue thereon to the country.
The third plea filed by the appellee is, in effect, a special or formal traverse, averring, by way of inducement, property in himself, and traversing, under the absque hoc, the appellant’s allegation of ownership in the property. It has been uniformly held by this court, in harmony with the decisions in other States where the common law practice prevails, that the allegation of property in the defendant is merely inducement to the formal traverse of the right of property in the plaintiff. It is not even traversable.
The question raised by such a plea is not whether the property is in the defendant, but whether the right of property and the right to immediate possession is in the plaintiff. It was held by this court, in Constantine v. Foster, 57 Ill. 36, that under the plea of property in the defendant or a stranger, in an action of replevin, with a denial of the right of property in the plaintiff, the only issuable fact is the right of property in the plaintiff; and, under such a plea, the plaintiff must recover on the strength of his own title, and that the burden of proof is on him to establish his right. Anderson v. Talcott, 1 Gilm. 371; Chandler v. Lincoln, 52 Ill. 74.
The question made by the pleadings in this case, and submitted to the jury for their consideration, was not whether the property was the property of the appellee, but whether it was the property of the appellant, and whether he was entitled to the exclusive possession.
On this question, the only witnesses examined were the parties themselves, and their testimony is flatly contradictory. In such cases we can not undertake to say which witness the jury ought to credit. The verdict will be deemed conclusive of the controverted facts.
The only fact settled by the verdict is, that the appellant is not the sole owner of the property in controversy, and entitled to the exclusive possession. It does not determine judicially, as the counsel seem to suppose, that the property is the exclusive property of the appellee. We do not understand that the appellant’s right to recover the undivided one-half of* the property is in any manner affected by the verdict in this case. That question was not in issue by the pleadings.
If the property was, in fact, partnership property, the possession in either party was lawful, and the order for the return of the property, on the finding of the jury, was not improper. It simply placed the parties in statu quo, where their respective rights to the property could be settled at a future period in some appropriate action.
It is insisted that the court erred in excluding the testimony of Doctor Baker- as to the value of the property. If it be conceded that the evidence offered was admissible, we can clearly see that the appellant was in no wise prejudiced by the rulings of the court. The value of the property proposed to be proven by the witness, Baber, was testified to by the appellant, and the witness Hiles, and its value fixed. The appellee did not dispute the value placed on the property by the witnesses; nor offer any rebutting evidence. Hence, the facts proposed to be proven by Baker, were, in effect, conceded by the appellee.
The instructions given on behalf of the appellee are not inconsistent with the views expressed in this opinion. They substantially state the law as applicable to the case, and could not mislead the jury on the issues involved.
The instructions asked on behalf of appellant, and refused by the court, do not state the law correctly as we understand it, and were properly refused.
Ho material error appearing in the record, the judgment is affirmed.
Judgment affirmed. '