Swantz v. Pillow

OPINION. Cockeill, C.' J. 1. Replevin: Delivery of specific property: Alternative ment. In replevin, the delivery of the property is the primary object of the action. The value is to be recovered in lieu of it, as an alternative- only “ in case a delivery cannot be had ” of the specific erty. Mansf, Dig., sec. 5181. Whatever purpose beneficial to the defendant the judgment in the alternative may serve, it is not put in that form to-give one who has been adjudged to be in the wrong, his election to pay the assessed value and retain the property as his own, against the will, of the party to whom the judgment of the' court, has awarded it. The point was so ruled in Harris v. Harris, 43 Ark., 535. That was an action of replevin; the judgment was .for the plaintiff for the delivery of the property; there was no assessment of its value and no alternative judgment. The omission to assess the value and render a judgment in the alternative was Held not to be prejudicial to any right of the defendant, because the property was under the control of the court, and, therefore, capable of certain delivery under its order. If the defendant had been entitled as of right, to have an assessment of the value so that he might pay it and take the property, the judgment would have been reversed. See too Kennedy v. Clayton, 29 Ark., 279. 2. Same Reteution of property after judgement him. appellant’s contention that the bond required to enable a defendant in replevin to retain the property, for all purposes in lieu of the property itself, would lead to this, that a 'party without color of right acquires’ an absolute title against the true owner, who sues him for the possession of specific articles of personal property by the execution of a bond to retain the possession. If that result had been contemplated by the legislature, the provision directing delivery of the property to the plaintiff in case the verdict is in his favor, would not have been added. See. 2181, sap. Provision for a personal judgment only would have been made in that event. The condition upon which the defendant retains the property,is that he will perform the judgment of the court in the action. Mansf. Dig., sec. 5581. If the plaintiff recovers, the judgment of the court in the first instance is for the delivery of the property. [See. 5181, sup., Hanf. v. Ford, 37 Ark., 550; Jetton v. Farris, 29 Id., 383.] The delivery is, therefore, as much a part of the defendant’s undertaking as if it were so stipulated in the bond. When the stipulation is required, there is no doubt of the obligation to. perform it when the judgrment is against the party executing the bond. Freeman on Ex., sec. 468; Wells on Replevin, sec. 476; Brunker v. Dyball, 42 Ill., 34; Lockwood v. Perry, 9 Met., Mass., 446; Hunt v. Robinson, 11 Cal., 262; McKinney v. Purcell, 28 Kans., 446; Lovett v. Burkhart, 44 Penn St., 173. 3. Same: Purchase of property, pending action. One who purchases property in suit wiih actual notice3of the litigation, as the plaintiff in this action did, so at his peril, and must abide the result the same as party from whom he got his title. Cases supra. It was the duty of the sheriff, therefore, to take the mule in question from the plaintiff, notwithstanding he had paid the defendant in replevin full value for the animal. Hoffman v. Conner, 76 N. Y., 121; Freeman on Ex., sec. 475. The appellee was not guilty of conversion in taking the animal under the writ issued in pursuance off the judgment for the delivery to the plaintiff in replevin, and the judgment is right. Affirm.