The opinion of the court was delivered by
Burch, J. :This action was one of replevin. The gist of it was wrongful detention. The return of specific property was demanded. Damages were asked . for wrongful detention, and the value of the property was prayed for only in the event a return of it could not be had.
The l’emedy of replevin is specific in purpose and limited in scope. It can only be invoked against a wrongful detention, which must exist at the time the suit is commenced. One who does not have the possession of coveted things does not detain them wrongfully and cannot be compelled to deliver them. He *633is absolutely invulnerable to a suit in replevin, and the fact that the value of the thing detained may be recovered in the event it cannot be produced to satisfy the judgment does not enlarge the power of that remedy.
•In the case of Ladd v. Brewer, 17 Kan. 204, it was said :
“A judgment for the return of certain personal property,. and damages for its detention, cannot be sustained against one who is shown by the testimony neither to have possession nor to claim any right to the possession.’5
In the case of Moses v. Morris, 20 Kan. 208, a demand was made upon the sheriff for the return of property which he held under legal process. Afterward he sold the property under an order of court made in the course of the proceeding in which the process had issued, and delivered it to the purchaser. The demanding party then brought replevin against him. In determining the rights of the parties, this court said:
“On the 10th of February, 1875, when the action of replevin was commenced by the defendant in error, the plaintiff in error was not wrongfully detaining the possession of the property sued for, as he then had neither the actual nor constructive possession of the same; neither did he have such possession conj ointly with his codefendant Diffenbacker ; nor was there any joint detention by him with Diffenbacker. After the sale of January 25th, Moses had nothing whatever to do with the property, and was indifferent to it.
“Without either actual or constructive possession, there is no power to deliver the property; and in the absence of such possession, it cannot be said that a defendant wrongfully detains the property. He may have committed acts which make him liable in damages ; and he may be liable for the value or use of the *634property in an action of another form ; but the action ■of replevin is not the proper remedy in such instances.”
In the case of Davis v. Van De Mark, 45 Kan. 130, 25 Pac. 589, the syllabus reads :
“Replevin will not lie against a person who is neither in the actual nor constructive possession of the property sought to be recovered, at the commencement of the action.”
This being the law, the judgment in favor of Sheriff Jones was undoubtedly correct. His conduct was solely that of an officer under an obligatory writ. When he sold the corn his possession of it ended and his interest in it ceased entirely. There was no mere ■shifting of possession for the purpose of defeating recovery, as in the case of Schmidt v. Bender, 39 Kan. 437, 18 Pac. 491. The principles there announced have no application, and no legal justification appears for joining the sheriff in this suit.
When the corn had been seized the plaintiff made a ■demand upon the sheriff for its release, and, in order that his position might not be mistaken or misconstrued, he committed it to writing. The sole basis for the demand was that the corn was exempt. When the sale took place the original attitude was maintained. The writing was again produced and read and the plaintiff’s right to the corn was reasserted because it was exempt. When suit was brought, the petition itself contained some allegations upon which the claim of exemption might have been predicated. With it'was filed an affidavit admitting the corn had been seized upon execution, but claiming that it was ■exempt. In reply to the answer of Jones, it was conceded that judgment had been rendered, execution issued and levied, and the corn sold, but it was said *635■that the corn was exempt. True, it is claimed in plaintiff’s brief that such a concession was not made, but this court will not now permit him to higgle oyer equivocal phrases for the purpose of escaping the disadvantages of a situation which he thought to be advantageous when he established himself in it. The theory of the plaintiff’s action, therefore, was that he had a right to the possession of. the corn because it was ■exempt. This theory is further exemplified in the reply to Houlette’s answer. There the judgment, execution, levy and sale were expressly admitted, but it was said that the corn was exempt. True, this reply was withdrawn, and thereafter could only be used as any other written admission ; but, as the record fairly shows, it was withdrawn for the purpose of permitting an attack by demurrer to the set-off defense of the answer, to which the reply was not properly pertinent, -and not for the purpose of shifting or abandoning the original theory of. the case. With the reply to Hou-lette’s answer withdrawn, the reply to the answer of the sheriff committed the plaintiff to the exemption theory of recovery as against that defendant, and it is impossible that there should be one theory of a case íor a defendant officer for selling corn under execution, and another for a defendant purchaser at such sale. Therefore, the finding of the jury to the effect that the corn in controversy was not exempt precluded a judgment against the defendant Houlette.
The plaintiff, however, claims that the judgment upon w'hich the execution issued was void. Since the action was one of replevin for exempt property seized under execution, the validity of the judgment upon which the execution issued was distinctly admitted by the very form of the action.
"The requirement of the code (fourth clause of *636§ 177), that the affidavit in replevin to recover the immediate possession of personal property shall state that the property sought to be replevied ‘ was not taken in execution on any order or judgment against said plaintiff, or for the payment of any tax, fine or amercement assessed against him, or by virtue of an order of delivery issued in an action of replevin, or any other mesne or final process issued against said plaintiff/ is imperative. All these facts must be sworn to exist before the order of delivery can be made ; and. unless they do exist as facts the action of replevin cannot be maintained (except in case of exempt property) .
“The object of the statute (fourth clause, §177, Code) is not solely to protect process in the hands of the officer to whom it is directed, and who in virtue of such process detains the property sought to be re-plevied. One object is, by prohibiting all such in-inquiry in the action of replevin, to compel the party who desires to contest the ’validity of any judgment or order of a court, or of any tax, fine, or amercement, to do so in some proper and direct proceeding for such purpose. The law affords a proper remedy in each case — one well adapted to try the question ; but the action of replevin is not such remedy.
“An exception to the rule that property in the custody of the law cannot be replevied by the execution or attachment debtor, is made in the case of property which by statute is exempt from seizure and sale on execution or attachment; and this exception is pro-yided for by the fifth clause of said § 177 of the code. But in every such case the validity of the judgment and execution, or order of attachment, is not questioned,.but is distinctly admitted." (Westenberger v. Wheaton, 8 Kan. 169.)
Seemingly, out of an abundance of caution, the defendants introduced portions of the record in the original suit between Houlette and Redinger, and probably enough to show a valid judgment. But whether sufficient for that purpose or not, so far as it *637went the evidence was consistent with the plaintiff’s admission of the validity of the judgment which the •bringing of the suit necessarily compelled, and could not, therefore, be prejudicial to him.
The plaintiff also claims that the sale of the corn was void because conducted at an improper place. Plaintiff’s attorney attended this sale in his behalf. He there made but one objection to the sale about to take place. He warned the sheriff and prospective purchasers that the corn was exempt, and nothing more. He sued the sheriff and the purchaser upon the ground that the corn was exempt. Upon his own estimation of his rights, it was immaterial to him where the sale was held. Having declared his position in the beginning, and having held it until after the issues were made up and a trial was in progress, he could not then ambush his adversary by an objection to the place of sale.
“Where a party gives a reason for his conduct and decision touching anything involved in a controversy, he cannot, after litigation' has begun, change his ground, and put his conduct upon another and a different consideration. He is not permitted thus to mend his hold. He is estopped from doing it by a settled principle of law. Gold v. Banks, 8 Wend. (N. Y.) 562, 24 Am. Dec. 90; Holbrook v. White, 24 id. 169, 35 Am. Dec. 607 ; Everett v. Saltus, 15 id. 474 ; Wright v. Reed, 3 Durnf. & E. 554; Duffy v. O’Donovan, 46 N. Y. 223 ; Winter v. Coit, 7 id. 288, 57 Am. Dec. 522." (Railway Co. v. McCarthy, 96 U. S. 258, 267.)
This authority, among other pertinent cases, has been quoted with approval in the following decisions : Davis v. Wakelee, 156 U. S. 680, 690, 15 Sup. Ct. 555, 39 L. Ed. 578 ; Davis & Rankin Bldg. & Manuf’g Co. v. Dix, 64 Fed. (C. C.) 406, 411; Tabler, Crudup & Co. v. Sheffield Land, Iron and Coal Co., 87 Ala. 305, 310, *6386 South. 196 ; Harriman v. Meyer, 45 Ark. 37, 40 ; McDonald v. Hooker, 57 id. 632, 638, 22 S. W. 655, 23 S. W. 678 ; Wallace v. Minneapolis & Northern Elevator Co., 37 Minn. 464, 35 N. W. 268; Wyatt v. Henderson, 31 Ore. 48, 55, 48 Pac. 790 ; Harris v. Chipman, 9 Utah, 101, 105, 33 Pac. 242 ; City of St. Louis v. Gas-light Co., 5 Mo. App. 484, 524 ; Ballou v. Sherwood, 32 Neb. 666, 689, 49 N. W. 790, 50 N. W. 1131; Frenzer v. Dufrene, 58 id. 432, 436, 78 N. W. 7J9. (See 9 Rose’s-Notes, 424.)
The evidence with reference to the existence of a-mortgage lien upon the corn in suit was admitted, apparently upon the theory that if-such a lien existed in good faith the plaintiff was entitled to sufficient corn to satisfy it. But the jury found the pretended lien fraudulently to have been contrived by the plaintiff for the purpose of defeating the execution creditor in the enforcement of his rights. This being true, the plaintiff could not ask for its enforcement. He cannot be permitted to build up rights upon the basis of his own fraud. The assignee of the original holder-was not a party to the suit and can complain of no error committed at the trial. Therefore, it is entirely immaterial whether or not the jury were properly instructed with reference to the transfer of the note and mortgage, whether or not findings upon that subject are consistent with each other, and whether or not any such findings are unsupported by the evidence. Only those errors which affect the substantial rights • of parties in a position to complain of them can work a reversal of a judgment of the district court.
The pleadings in the action, were short and simple and easy to comprehend. The brief indication of the issues by the court tended to prevent any obfuscation the unexplained pleadings might cause. The special *639findings show that the jury was clear regarding the material facts, and these findings were in harmony with the general verdict. It is, therefore, impossible-to conclude, from an inspection of the record, that the jury was confused or misled by the pleadings-which the court permitted them to take in connection with the instructions, and. the judgment entered will not be overturned on account of the conduct of the court in that respect.
On the face of the record the money judgment-against the plaintiff, entered by the clerk in opposition to the verdict of the jury and without warrant in ' the pleadings, was invalid. The defendant in whose favor the unauthorized judgment apparently ran has-relinquished every right which it wrongfully seemed to afford him.
“An error in a judgment, in that it exceeds the-amount of the verdict on which it is entered, may be cured by a remittitur of the excess.” (18 Encyc. PL & Pr. 142.)
The mistake was not called to the attention of the district court. It could have been corrected there by motion, practically without expense. Its commission is only one of many errors- complained of here, and was not the inducement to this proceeding in error. Therefore, the judgment will not now be reversed on account of it, and no costs will'be allowed in this court because of it.
The plaintiff failed to provea cause of action against either of the defendants Graham or Pettyjohn, even though it be conceded that they were in possession of some of the corn. Therefore, their demurrers to the evidence were rightfully sustained, the jury was properly instructed to, make no finding respecting their *640rights, and judgment was properly entered in their favor.
The record is free from any material error, and the judgment of the district court is affirmed.
All the Justices concurring.