W. H. Pyburne, as trustee, brought an action of replevin against Eli Moses for the recovery of two mules, one cow and a wagon, of the aggregate value of $260. Reclaimed possession under a deed of trust executed by Moses to secure his indebtedness to L. W. Munroe. Moses denied that he was indebted to Munroe, and alleged that the property claimed was in the possession of plaintiff at the commencement of this action. The issues were tried by a jury; a verdict was returned in favor of the defendant for the property or its value ; judgment was rendered accordingly in favor of the defendant against the plaintiff; and plaintiff appealed.
On the trial some evidence was adduced tending to prove that appellant was in possession of the property in controversy at the time of the commencement of his action; and the court, among other things, instructed the jury that if the property, at the time the action was instituted, was in the possession or under the control of the appellant, they *123should find for the appellee. The question is, did the court err in giving this instruction ?
R e p 1 e v i n— Premature action—Costs. It is contended that, to sustain an action of replevin, it is necessary that the plaintiff allege and prove that he is entitled to the immediate possession of the property sued for, and that the defendant wrongfully holds the same. This contention is correct, but the fact that appellant was in the possession when he commenced his action did not alone give the appellee a right to a verdict'or judgment for the property. This fact, if pleaded and proved, would only go in abatement of the suit, and not to establish a right to the possession of the property. Suppose that it had been the only defense pleaded by the appellee, did the trial of the issue presented by it involve the right to the possession ? Certainly not. Then the- jury could not have been legally required to return a verdict in favor of the appellee for the property or its value. No issue as to the property or its possession could have been tried by them, as no such was submitted. There having been no controversy about the property and its possession, the appellee would not have been entitled to a judgment for the same. In that case it would be unreasonable to say that appellee was entitled to a verdict or judgment for property that he never claimed. The statutes directing that “ in actions for the recovery of specific personal property, the jury must assess the value of the property, as also the damages for the taking or detention, whenever, by their verdict, there will be a judgment for the recovery or return of the property,” and that, “ where the property has been delivered to the plaintiff, and the defendant claims a return thereof, judgment for the defendant may be for the return of the property, or its value, in case a return cannot be had, and damages for the taking and withholding of the property” (Mansf, Dig., secs. 5145, 518x), only refer to actions in which the issues to be tried involve the right to the possession of the property. This is manifest. It is equally manifest that the fact that appellant was in possession when his action was commenced, pleaded in *124connection with other defenses in which the appellee claimed possession, did not entitle appellee to a verdict or judgment for the property or its value. Appellant did not forfeit to appellee his right to the property by bringing his action prematurely. This fact proved nothing, except that the action should not have been brought at the time it was, and entitled the appellee to nothing except costs; and the jury should have been so instructed.
The instruction given was misleading and prejudicial to appellant.
Reversed and remanded.