#### Hill vs. Robinson.

To entitle the plaintiff to recover in an action ot replevin, lie must not only hare title, but must also liavo a right to tlio possession at the time his action is commenced. *Britt vs.*Aylett, 6 *Eng.*476.

where Hiero are soveral joint owners of a divisible chattel, in the possession of one, replevin will not lie by another joint owner for his share, until a division of the property.

Replevin will not lie for property legally in the possession of another, who has a lien upon it for charges, until such charges bo paid; nor until after demand and refusal, or conversion.

*Quere:*Is a declaration in replevin “for fifteen hundred pounds of seed cotton,” without other description, sufficient.

*Writ of Error to the Clrcidt Gourt of Sevier Gounty.*

Hon. Shelton "Watson, Circuit Judge.

PiKE *&*Cummins, for plaintiff in error.

The defendant bad a lien on the property for services, and it could not be removed until tender or payment; and, of course, replevin would not lie. *Wheeler vs.*MeFa/rla/nd, 10 *Wend.*318 / *Sharp vs. Whittenhall,*3 *Hill*576.

Replevin will only lie for a tiling capable of clear identification, and of specific delivery. 2 *Saund. PI. d> Jiv.*760/ 1 *Oh. Pleadings.*

Parties here were co-tenants or partners: and for this reason, replevin would not lie. *Whitesides vs.*Collier, 7 *Dana*283.

GallagiieR, contra.

Action will lie for recovery of seed cotton already picked: it comes under the definition of goods or chattels. *Dig., eh.*136, *see.*1, *Title Replevin.*

*91The evidence showed title in the plaintiff; and the property could be divided by weight. The testimony was sufficient for the jury to presume that Hill claimed the property of the plaintiff by virtue of the garnishment. *Prater ad. vs.*Frazier, 6 *Eng. Pep.*

Mr. Justice Walker

delivered the opinion of the Court.

This was an action of replevin, brought by Kobinson against TIill, to recover fifteen hundred pounds of seed cotton. The declaration is in the detinet, and no other description of the cotton is given, or where it was, whether in bags, a pen, or a house, or whether it was separated from, or in a pile with other cotton.

The defendant pleaded non-detinet/ which, under our statute, puts in issue, as well the title to the property, as the wrongful detention of it.

The jury found a verdict for the plaintiff, and after motions in arrest of judgment, and for a new trial, were made and overruled, the defendant excepted, and has brought the case here upon writ of error.

From the nature of the goods sought to be recovered, it is not to be expected, that any very definite description could be made by the pleader. “ *Fifteen hundred pounds of seed*cotton” is sufficiently descriptive of the article; and, also, of the quantity, but, as the officer was required to take it into his possession, it is very doubtful whether some further identification of the particular cotton, sought to be recovered, should not have been made, such as, that it was at a certain place, in a pen, or house, or in a pile; such, at least, would seem to be the role held in 6 *Hill's R.*418.

But aside from all objection to the declaration, it is very clear, that in order to entitle the plaintiff to a verdict, lie should show a right to the property, and to the possession of it, at the the action was commenced. *Wheeler vs.*Train, 3 *Pick. 255 Walcot vs. Pomroy,*2 *Pick.*121; *Dickson vs.*Thatcher, 14 *Ark. R.*114.

*92He must not only have title, but must also have a right to the possession at the time his action is commenced. So, in the case of *Britt vs.*Aylett, 6 *Eng.*476, this court held, that to sustain replevin, the plaintiff must be entitled to the immediate possession, and could not recover property hired, until the expiration of the term of hiring. Nor can a recovery be had by one who has a joint interest in the property with the defendant, who is in possession. *Whitesides vs. Collins,*7 *Dana*283, *Coke Littleton*200. Nor where the defendant in possession has a lien upon the property, as where a warehouse-man has commissions for storage, or a mechanic for repairs. Until these be paid, not even the original owner of the property could remove them, much less one who holds by purchase under him. *Wheeler vs.*McFarland, 10 *Wend.*318; *Stamps vs. Whittershall, 3 Hill R. 576.*

In this case, it seems, that in the year 1850, there was a crop of cotton, then growing in the field, which belonged to McGraw, (defendant) Hill, and Woods: one-half of which was Hill’s, and the other half belonged equally to McGraw and "Woods. Thus standing, and before any division of the crops, it was agreed, between the parties in interest, that Hill was to pick out the cotton, haul it to the gin, and pay himself for picking and hauling the cotton, and then divide it, keeping for himself one-half, giving one-fourth to Wood, and the other was McGraw’s. McGraw being in debt to Robinson, agreed to let him have his interest in the cotton; provided, he would give as much for it as any one else. Hill was present when the contract between McGraw and Robinson was made, and agreed to let Robinson have the interest of McGraw, upon tho terms above mentioned. Some six months after this, Robinson paid McGraw for the cotton, three dollars per hundred: does not recollect how much was paid; of which, however, Hill had no information.

Hill gathered the crop, threw it up in a pile, no division had been made, nor was this cotton separated from Hill’s own cotton. The cotton -was then not all gathered — 6000 pounds in the pen, and about 1000 still in the field unpicked.

*93Hill claimed, at the time the officer came to replevy the cotton, that he was to he paid for picking and hauling it. No division was made, nor was there any demand prior to the commencement of the suit. The officer seized upon 1500 lbs. of the cotton in obedience to his wuit.

It is also in proof, that ITill had, previously to that time, been garnisheed by a judgment creditor of McGraw’s, to answer with-regard to this cotton.

Under this state of case, it is manifestly clear, that Kobinson could not recover in this action, until a division of the crop had been made. It was the joint property of all the claimants. McGraw himself could not have recovered it in this form of action, until a division bad been made; nor even then, until Hill had been paid for picking it out and hauling it. A part of the crop was still attached to the freehold, and was not subject to be re-plevied. And even when divided and set apart, unless in sacks, bales, or so situated as to be identified and distinguished, it is very questionable whether replevin would lie. Proof of a demand and refusal or conversion, was also necessary in this form of action. *Beebe vs. DeBaun, 3 Eng.*510. The whole of the instructions asked by the defendant, although not very concisely stated, should have been given. And as there was a total want of sufficient evidence, in the several particulars enumerated, to entitle the plaintiff to recover, a new trial should have been awarded.

The judgment must therefore be reversed, and the cause remanded, with instructions to the court below to grant a new trial, and for father procedings therein to be had, not inconsistent with the opinion herein delivered, and according to law.

Absent, Mr. Justice Scott.