David A. Higgins, guardian of Hugh E. Adams, a person of unsound mind, commenced this action in replevin against Michael II. Reardon to recover possession of a horse, and damages for its detention. The ward died pending the suit, and the administrator, Higginsj was substituted as plaintiff.
The complaint is in two paragraphs. The first alleges that David A. Higgins, the duly appointed guardian of Hugh F. Adams, a person of unsound mind, as such guardian complains of Michael IT. Reardon, the defendant, and says that plaintiff’s said ward is the owner, and entitled to the immediate possession, of one bay horse, about seven years old, known as and named St. Patrick, of the value of $4,000, and which horse the defendant wrongfully took possession of without right and unlawfully detains from the plaintiff. The second alleges, in substance, that plaintiff’s ward is the. owner, and entitled to the immediate possession, of one bay pacing horse, about seven years old, generally known as and named St. Patrick, of the value of $4,000, which horse the defendant unlawfully
Said cross-complaint alleges that on or about August 1, 1901 \ a certain oral agreement was entered into between the cross-complainant and Hugh F. Adams, whereby the cross-complainant agreed to furnish money to said Adams from time to time during the horse-racing season of 1901, for the purpose of enabling Adams to ship his race-horse, known as St. Patrick, to various race-courses throughout the country and to pay for the feeding and care of said
1. This action is for the possession of personal property. The gist of the action is necessarily its unlawful detention. The question presented under the counterclaim and under the special finding of facts (for the averments of the counterclaim are specially
2. A special right of possession is a good defense. Such interest is entitled to the same protection as an absolute interest. Cobbey, Replevin (2d ed.), §815; Mitchell v. Hinman (1832), 8 Wend. 667.
3. Appellant claims, as his special right, an equitable lien in consideration, of the verbal promise made by its owner . to deliver to him the horse as security for the repayment of the money advanced to said owner by the appellant. Upon the subject of equitable liens we quote from 3 Pomeroy, Eq. Jurisp. (3d ed.), §1235: “The doctrine may be stated in its most general form, that every express executory agreement in writing, whereby the contracting party sufficiently indicates an intention to make some particular property, real or personal, or fund, therein described or identified, a security for a debt or other obligation, or whereby the party promises to convey or assign or transfer the property as security, creates an equitable lien upon the property so indicated, which is enforceable against the property in the hands not only of the original contractor, but of his heirs, administrators, executors, voluntary assignees, and purchasers or encumbrancers with notice. Under like circumstances, a merely verbal agreement may create a similar lien upon personal property. * * * But the doctrine itself is clearly an application of the maxim, equity regards as done that which ought to be done.” The learned author further says that in order that a lien may. arise in pursuance of this doctrine, the agreement must-.deal with some particular property, identifying it or so describing it that it can be identified and must indicate with sufficient clearness an intent that the property so described is to be held, given or transferred as security for the obligation. Oiting numerous cases, among them the following: Knott v. Shepherdstown Mfg. Co.
4. Counsel for appellee insist that, for numerous reasons, the rulings of the trial court were correct. These reasons we will consider. (1) Replevin is an action sounding in tort. The law does not permit a counterclaim based upon a contract to be pleaded to a complaint based upon a tort. As a general rule, the proposition is correct, but “suits in. replevin are said to be in some respects sui generis, and the inclination of the courts has been to give them a flexibility sufficient to meet exigencies and adjust all equities arising in such actions.” Oobbey, Replevin (2d ed.), §15. The action of replevin “should he liberally construed in the interest of justice.” Oobbey, Replevin (2d ed.), §13. Hickman v. Dill (1888), 32 Mo. App. 509; Boutell v. Warne (1876), 62 Mo. 350; Barney v. Brannan (1883), 51 Conn. 175.
5. (2) The contract set forth in the counterclaim did not arise out of, nor was it connected with, the cause of action within the meaning of the statute defining, a counterclaim. Section 353 Burns 1901, §350 R. S. 1881, reads: “A counterclaim is any matter arising out of or connected with the cause of action which might bet the subject of an action- in favor of the defendant, or which would tend to reduce the plaintiff’s claim or demand for damages.” “The cause of action, as it appears from the complaint when properly pleaded, will therefore always be the facts from which the plaintiff’s primary right and the defendant’s corresponding primary duty have arisen, together with the facts which constitute defendant’s delict or act of wrong.” Pomeroy, Remedies and Remedial Rights, §453. Appellee’s primary right is the right to pos
6. The fact that the • court awarded only nominal damages would not affect the rule of pleading.
,7. Appellee contends that the conclusion of law was correct, because appellant, in taking possession of the horse, committed a tort, and that his subsequent detention was unlawful. We think that the plaintiff should not recover in this action, unless defendant’s detention was unlawful. The manner by which he obtained possession would not determine his right thereto. The owner of the property having, for a consideration paid to him, agreed to give to appellant the possession of the horse as security for money advanced, his representative ought not now be heard to complain of appellant’s action in claiming his right under the agreement. If the manner of getting’ possession of the property was unlawful, no demand for its return, before the bringing of the suit, was necessary. If possession had been taken by violence, appellant wordd be liable in trespass, but not in an action for possession. The
8. Appellee insists that the special findings did not show that McVay was a liveryman, or that he held a liveryman’s lien on the horse, and that if he did that lien .was not assignable. Without setting out the findings we deem it sufficient to say that this court has held in Glascock v. Lemp (1901), 26 Ind. App. 175, that the lien which §7254- Burns 1901, §5292 R. S. 1881, gives to a livery-stable keeper upon animals fed and cared for by him cannot be assigned to another so as to preserve a lien and right to possession of the property in favor of the assignee. Appellant’s right in this cause is not that of an assignee. He is the original holder of an equitable lien. That appellant did not bring suit to enforce his lien is not a matter of which appellee can complain.
9. It is agreed by appellee that appellant could not have successfully prosecuted a srut for the specific performance of the contract, and that he could not have maintained an action in replevin for the horse, because that would have been but another method of enforcing specific performance. To have found as a conclusion of law that appellant was entitled to his lien as claimed, would not necessarily have required the owner of the property or his representative to perform his contract,
10. On its face, the pleading to which the demurrer was sustained is styled a cross-complaint; in the brief of counsel it is treated as a counterclaim. We have considered it a counterclaim, because its allegations determine its character.
11. Appellant ought not to be compelled to litigate his claim in an independent action, under the facts found. When the money due him under his original claim is paid, his lien ceases, The judgment should' be for the value of the defendant’s interest or for a return of the property, until the value is paid at the option of the appellee.
Judgment reversed, with instructions to overrule appellee’s demurrer to the amended cross-complaint, and 'for other proceedings not inconsistent with this opinion.