Opinion
No. 13,018.
Filed March 15, 1928.
REPLEVIN — Ownership — Estoppel to Claim. — One who placed hogs in the possession of another, with authority to sell them, thus clothing the latter with the indicia of ownership, cannot maintain an action of replevin against a third party who purchased the hogs from the bailee without notice of plaintiff's ownership, since the plaintiff would be estopped to claim ownership as against an innocent purchaser for value.
From Marion Circuit Court (40,417); Harry O. Chamberlin, Judge.
Action in replevin by Harold D. Barker against William B. Wood. From a judgment for defendant, the plaintiff appeals. Affirmed. By the court in banc.
George Burkhart, for appellant.
James E. Rocap, for appellee.
Action in replevin for a number of hogs which appellant had placed with one Stone for sale, said Stone being in the business of buying and selling hogs in the city of Indianapolis, appellee having purchased the hogs from Stone.
From a judgment for appellee, this appeal is prosecuted. Appellant assigns as error the court's action in overruling his motion for a new trial. Appellee forcefully contends that nothing is presented because of failure of appellant to comply with the rules of the court in the preparation of his briefs. But, in any event, appellant cannot prevail.
The evidence shows that he delivered the hogs to Stone with power to sell them, and allowed it to appear that the title to the hogs in question was in Stone, the alleged wrongdoer. He clothed Stone with all the indicia of ownership, and he is now estopped to assert title against appellee, an innocent purchaser without notice. Of the two innocent parties, the appellant must be the one to sustain the loss. First Nat. Bank v. Josefoff (1914), 57 Ind. App. 320, 105 N.E. 175; Earle v. Fletcher American Nat. Bank (1919), 70 Ind. App. 559, 568, 123 N.E. 706; Hirsch v. Norton, Admr. (1888), 115 Ind. 341, 343; Preston v. Witherspoon (1887), 109 Ind. 457, 464.
Affirmed.
McMahan, J., not participating.