Stern v. Riches

MaRshall, J. This case is ruled by two very familiar principles, viz.: In an action of replevin the plaintiff’s right to recover must be tested by the facts existing at the time of the commencement of the action. The defendant may defeat the plaintiff’s claim by proving right of possession of [591] the property in dispute at the time of the commencement of the action in a third person and connecting himself with such third person. Conceding that appellant should hare delivered the property in question to respondent as exempt from attachment, it stands without dispute that this action was not commenced till the mortgagee demanded possession of such property and perfected her cause of action to recover the same from appellant. Mow, as the right of the mortgagee was superior to that of respondent upon her choosing to assert the same, when she perfected her right to maintain an action to recover the property of appellant, that necessarily superseded the claim of respondent to the property. Appellant, by proving the superior right of the mortgagee and the demand by her for possession of the property, clearly established right to the possession thereof in a third person not before the court and connected himself with such third person, and judgment should have been rendered in his favor accordingly. Timp v. Dockham, 32 Wis. 146; Wells, Replevin, §§ 689, 692. By the Oowrt.— The judgment of the superior court is reversed, and the cause remanded with directions to render judgment in favor of defendant.