Gantt, P. J.
This is an action of replevin for a mare. The appeal has been certified to this court by the St. Louis Court of Appeals, because one of the judges of that court deemed the opinion of the majority to be contrary to previous decisions of this court. Const. Arndt, of 1884, sec. 6.
The plaintiff gave bond and possession of the mare was delivered to him by the officer serving the writ. The jury found the issues for the defendant and assessed the value of the animal at $70 and the damages for detention at $50, and the circuit ^ourt rendered judgment accordingly. From that judgment plaintiff appeals.
A new trial was asked on the grounds that the verdict was against the evidence; against the law; against the law and the evidence; is for the wrong party; the court refused proper instructions asked by plaintiff, and gave improper instructions for defendant; admitted incompetent evidence against plaintiff’s objections and excluded proper evidence offered by plaintiff.
The following facts were in evidence before the circuit court:
The plaintiff, 3. O. Ingals, deduced his title to the [362]*362mare in controversy through one E. W. Green, and defendant claims title through both E. W. Green and Mrs. Eliza C. Green, his wife. In 1887 there was an auction sale of stock at the Scott farm in St. Louis county. Mr. Sutton, a member of the auction firm of Lanham & Sutton, testified that he attended that sale. He remembered the mare in controversy was sold that day. Judge Lanham sold the horses and witness made the memoranda of the sale. The entry of the sale of this mare was to Eliza Green. Eddie Green bid it in in her name and her name was entered on the firm books by myself. Mrs. Green was a teacher in the public schools. The payments on account of this purchase were not made oftener than once a month. I got the money from Mr. Green. He told me that they were Mrs. Green’s monthly payments as a teacher. There was a note given for the stock purchased by Mrs. Green, joined by her husband, and secured by mortgage, also signed by Green and his wife.
The plaintiff took Green’s deposition at Sedalia. It seems that several years after the sale he deserted his family and his evidence for that reason appears in deposition taken at Sedalia. In this deposition he testified: “I bought the mare and the stock out there at the
Scott sale. The auctioneers were Judge Lanham and Henry L. Sutton. Lanham called the sale and Sutton wrote it down. I told them at the time I purchased this mare Julia to put her down in the name of my wife, and it was done. All the property I bought there wend in her name. She never conveyed that property to me by any instrument of writing. It is-Jiers.”
In 1888 a farm belonging to Green and wife was about to be sold under a deed of trust. The holder of the mortgage debt agreed that if Green would pay him a “$100 on the note he would wait.” Thereupon borrowed that amount from the plaintiff Ingals, who [363]*363testifies that in March, 1888, Green gave him an absolute bill of sale of the mare on the condition that he was to have her back when he paid the $100, and the mare’s feed at $15 per month. This bill of sale was not produced. Plaintiff stated that it was lost. Under this arrangement he kept the mare six months and Green said to him: “She is eating her head off.” “Send her out to the country and she shall still be yours and I will make a note for $200 which will cover the feed bill, and the balance I owe you, and I will give you a mortgage on two two-year-olds for security.”
Plaintiff agreed to this and returned the mare to Green-. Green paid plaintiff $90 on this indebtedness, according to his evidence, but according to William E. Green’s testimony, plaintiff told him he was fully paid. William also testified that E. W. Green, his father, did $102 worth of tailoring for plaintiff.
The only evidence tending to show that Mrs. Green knew of her husband’s mortgage or sale of 'the mare to plaintiff is found in the statement of plaintiff that: “She knew the mare was in my possession the first six months from March to September, 1888, because I drove out there once or twice with her and she noted her condition, saying she was looking better. She made not the slightest objection to my possession of the mare.” Whether plaintiff knew of Mrs. Green’s claim does not appear from the testimony.
The original defendant deduced title in the following way: He was merely the bailee of Mr. R. N. Alexander, who has since died, and whose wife and his administratrix has been substituted in the case as defendant. On the eighth of May, 1890, Green and wife executed a chattel mortgage to secure the payment of certain indebtedness due from them to F. W. Peters. The mortgage described various farm machinery, certain mules, Jersey cows, household and kitchen furni[364]*364ture, plate and glassware and concluded with these words, “all the stock and all implements on the farm known as Evergreen Farm, in section 31, township 45, range 6, one mile west of Webster in Central township, St. Louis county, State of Missouri.” Soon after the execution of this mortgage to Peters, Green absconded, leaving wife and creditors behind. Among these creditors was Mr. R. N. Alexander.
In order to save his own debt Mr. Alexander purchased the Peters debt and mortgage, and took possession of all the mortgaged property, claiming the mare in question as a part thereof. At the mortgage sale of this property Mr. Alexander bought the mare for $150. The plaintiff Ingals was present at the sale and gave notice of his claim to the mare. Shortly after Green left Mr. Alexander also got a till of sale from Mrs. Green conveying her title to the mare and all other property on the farm. He gave her $50 and all the household property as a consideration for the bill of sale.
Among other instructions the court gave the following for the defendant:
“The jury are instructed that if they believe from the evidence that said mare was the property of Eliza C. Green and that plaintiff secured a deed from E. W. Green only, and that he has not secured the title of Eliza C. Green, then they must find for defendant.”
The propriety bf this instruction as applied to the foregoing evidence caused a difference of opinion ¡among the judges of the St. Louis Court of Appeals. On the one hand it is insisted, first, that there was no substantial evidence that Mrs. 'Green was the sole owner of the mare in suit, and, secondly, that if she had an interest it was joint and her vendee could not maintain replevin for this undivided interest. Third. It was objected that the instruction ignored the evidence of estoppel in the case. Of these in their order.
[365]*365We think there was much evidence of sole ownership of this mare by Mrs. Green. The plaintiff introduced E. W. Green as a witness, and thereby vouched for his credibility. He testified that when he bid off the mare at Scott’s sale, he instructed Mr. Sutton to put her down in Mrs. Green’s name, and this was done. He testified further: “She,” meaning his wife, “never conveyed that property to me by any instrument in writing. It is hers.” Moreover, this witness testifies he used his wife’s money in part in payment of this stock, and in this is corroborated by Mr. Sutton, who says Green told him as he made the various monthly payments, that it was his wife’s money she had earned by teaching school.
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Gantt, P. J.
This is an action of replevin for a mare. The appeal has been certified to this court by the St. Louis Court of Appeals, because one of the judges of that court deemed the opinion of the majority to be contrary to previous decisions of this court. Const. Arndt, of 1884, sec. 6.
The plaintiff gave bond and possession of the mare was delivered to him by the officer serving the writ. The jury found the issues for the defendant and assessed the value of the animal at $70 and the damages for detention at $50, and the circuit ^ourt rendered judgment accordingly. From that judgment plaintiff appeals.
A new trial was asked on the grounds that the verdict was against the evidence; against the law; against the law and the evidence; is for the wrong party; the court refused proper instructions asked by plaintiff, and gave improper instructions for defendant; admitted incompetent evidence against plaintiff’s objections and excluded proper evidence offered by plaintiff.
The following facts were in evidence before the circuit court:
The plaintiff, 3. O. Ingals, deduced his title to the [362]*362mare in controversy through one E. W. Green, and defendant claims title through both E. W. Green and Mrs. Eliza C. Green, his wife. In 1887 there was an auction sale of stock at the Scott farm in St. Louis county. Mr. Sutton, a member of the auction firm of Lanham & Sutton, testified that he attended that sale. He remembered the mare in controversy was sold that day. Judge Lanham sold the horses and witness made the memoranda of the sale. The entry of the sale of this mare was to Eliza Green. Eddie Green bid it in in her name and her name was entered on the firm books by myself. Mrs. Green was a teacher in the public schools. The payments on account of this purchase were not made oftener than once a month. I got the money from Mr. Green. He told me that they were Mrs. Green’s monthly payments as a teacher. There was a note given for the stock purchased by Mrs. Green, joined by her husband, and secured by mortgage, also signed by Green and his wife.
The plaintiff took Green’s deposition at Sedalia. It seems that several years after the sale he deserted his family and his evidence for that reason appears in deposition taken at Sedalia. In this deposition he testified: “I bought the mare and the stock out there at the
Scott sale. The auctioneers were Judge Lanham and Henry L. Sutton. Lanham called the sale and Sutton wrote it down. I told them at the time I purchased this mare Julia to put her down in the name of my wife, and it was done. All the property I bought there wend in her name. She never conveyed that property to me by any instrument of writing. It is-Jiers.”
In 1888 a farm belonging to Green and wife was about to be sold under a deed of trust. The holder of the mortgage debt agreed that if Green would pay him a “$100 on the note he would wait.” Thereupon borrowed that amount from the plaintiff Ingals, who [363]*363testifies that in March, 1888, Green gave him an absolute bill of sale of the mare on the condition that he was to have her back when he paid the $100, and the mare’s feed at $15 per month. This bill of sale was not produced. Plaintiff stated that it was lost. Under this arrangement he kept the mare six months and Green said to him: “She is eating her head off.” “Send her out to the country and she shall still be yours and I will make a note for $200 which will cover the feed bill, and the balance I owe you, and I will give you a mortgage on two two-year-olds for security.”
Plaintiff agreed to this and returned the mare to Green-. Green paid plaintiff $90 on this indebtedness, according to his evidence, but according to William E. Green’s testimony, plaintiff told him he was fully paid. William also testified that E. W. Green, his father, did $102 worth of tailoring for plaintiff.
The only evidence tending to show that Mrs. Green knew of her husband’s mortgage or sale of 'the mare to plaintiff is found in the statement of plaintiff that: “She knew the mare was in my possession the first six months from March to September, 1888, because I drove out there once or twice with her and she noted her condition, saying she was looking better. She made not the slightest objection to my possession of the mare.” Whether plaintiff knew of Mrs. Green’s claim does not appear from the testimony.
The original defendant deduced title in the following way: He was merely the bailee of Mr. R. N. Alexander, who has since died, and whose wife and his administratrix has been substituted in the case as defendant. On the eighth of May, 1890, Green and wife executed a chattel mortgage to secure the payment of certain indebtedness due from them to F. W. Peters. The mortgage described various farm machinery, certain mules, Jersey cows, household and kitchen furni[364]*364ture, plate and glassware and concluded with these words, “all the stock and all implements on the farm known as Evergreen Farm, in section 31, township 45, range 6, one mile west of Webster in Central township, St. Louis county, State of Missouri.” Soon after the execution of this mortgage to Peters, Green absconded, leaving wife and creditors behind. Among these creditors was Mr. R. N. Alexander.
In order to save his own debt Mr. Alexander purchased the Peters debt and mortgage, and took possession of all the mortgaged property, claiming the mare in question as a part thereof. At the mortgage sale of this property Mr. Alexander bought the mare for $150. The plaintiff Ingals was present at the sale and gave notice of his claim to the mare. Shortly after Green left Mr. Alexander also got a till of sale from Mrs. Green conveying her title to the mare and all other property on the farm. He gave her $50 and all the household property as a consideration for the bill of sale.
Among other instructions the court gave the following for the defendant:
“The jury are instructed that if they believe from the evidence that said mare was the property of Eliza C. Green and that plaintiff secured a deed from E. W. Green only, and that he has not secured the title of Eliza C. Green, then they must find for defendant.”
The propriety bf this instruction as applied to the foregoing evidence caused a difference of opinion ¡among the judges of the St. Louis Court of Appeals. On the one hand it is insisted, first, that there was no substantial evidence that Mrs. 'Green was the sole owner of the mare in suit, and, secondly, that if she had an interest it was joint and her vendee could not maintain replevin for this undivided interest. Third. It was objected that the instruction ignored the evidence of estoppel in the case. Of these in their order.
[365]*365We think there was much evidence of sole ownership of this mare by Mrs. Green. The plaintiff introduced E. W. Green as a witness, and thereby vouched for his credibility. He testified that when he bid off the mare at Scott’s sale, he instructed Mr. Sutton to put her down in Mrs. Green’s name, and this was done. He testified further: “She,” meaning his wife, “never conveyed that property to me by any instrument in writing. It is hers.” Moreover, this witness testifies he used his wife’s money in part in payment of this stock, and in this is corroborated by Mr. Sutton, who says Green told him as he made the various monthly payments, that it was his wife’s money she had earned by teaching school. These declarations of Green long before any controversy had arisen, and accompanying the act of payment itself, would certainly be most convincing evidence against Green had he attempted to deny his wife’s title, and was evidence against plaintiff who claimed under and through Green, and was received without any objection thereto.
Her wages as teacher by our statute became her separate estate, and the property purchased therewith retained the same character of estate in law. It must be borne in mind that no fraud is charged. But it is urged that Mrs. Green did not pay all the purchase price for the stock bid off in her name. The record is very unsatisfactory as to the whole payment, but it does not show that the husband paid any considerable part of it. Granting that he did put a part of his own earnings into the property which he had by his own unequivocal act notified the auctioneers was her property, this would not defeat her title save at the instance of some creditor of Green, who could follow the property to the extent his money went into it. It is not open to attack in this case under the pleadings. The transaction is entirely consistent with an honest purpose [366]*366upon his part to give her whatever sum of his own money he contributed to the purchase of the stock, without, in any manner, intending to assert a title therein in himself. We hold there was much evidence tending to show this mare was the wife’s sole property, and hence there was no error in submitting that phase of the case to the jury. It follows, moreover, that if the jury found that it was the wife’s property, then her husband’s bill of sale conveyed no title to plaintiff, and as it was conceded he had no title from Mrs. Green, plaintiff must fail.
2. But it is objected, moreover, that the instruction is faulty in ignoring the estoppel which was disclosed by the evidence. We think every essential of an estoppel in pais is wanting in the case.
The bare fact that several years previous to the bringing of the suit plaintiff had obtained possession of the mare from Green, and had driven her to Green’s house on one or two occasions with the knowledge of Mrs. Green, can not work an estoppel. Plaintiff nowhere testified to any other knowledge by Mrs. Green of the conditional sale of the mare by her husband to him.
Mrs. Green was a lady engaged in teaching. For aught that appears, she might well have thought plaintiff had the mare for breeding or for training, especially as. at the end of six months he returned her, and the mare then remained continuously on the Evergreen farm without the slightest claim or act of ownership by plaintiff. A much stronger estoppel could have been urged against plaintiff by Mr. Peters, who took the mortgage, and by Mr. Alexander, who bought the mortgage and took possession of the mare, without any notice of plaintiff’s claim. It goes without saying that Mrs. Green’s act in sending the form of a bill of sale to her husband to be executed long after this suit [367]*367was instituted, had no element of estoppel in it, as it in no manner induced plaintiff’s action in acquiring the mare or bringing the suit. Her compliance with his request at that late day could not have influenced his transaction several years prior thereto.
3. Inasmuch as the members of the court of appeals differed in the construction of the decision of this court in Cross v. Hulett, 53 Mo. 397, we will restate the decision in that case.
John A. Cross, Stephen Hulett, and Mrs. Beckett jointly owned a cane mill, skimmer, and pans. Cross asserted that Hulett had sold him his interest in the property which transfer was denied by Hulett. Thereupon Cross sued Hulett by replevin before a justice of the peace, and Hulett obtained a verdict and judgment. In the common pleas court on appeal Hulett again obtained a verdict and judgment “for the recovery of the property sued for, as well as costs.” This court held that as there was no pretense that Cross had ever sold his interest in the property, a judgment giving defendant Hulett possession of the property was erroneous, irrespective of the instructions, because replevin did not lie by one joint owner against his co-owner for the obvious reason that neither was entitled to exclusive possession of such property.
The opinion in that case does not show whether an order of delivery had been made, and possession taken under it, but had there been a taking of the property by the constable or sheriff and a delivery to Cross, still the judgment was erroneous, which would have deprived Cross of his joint right of possession irrespective of whether he had obtained Hulett’s interest or not. The full extent to which the judgment could have gone would have been a restoration of Hulett to his joint possession, lost by the execution of the order of delivery. But that case is not like this. In this [368]*368case plaintiff obtained possession of this mare by virtue of an order of delivery. He had no other possession. Having obtained the possession by means of his writ of replevin and having been defeated on this claim at the trial, he now asserts that defendant can not have a judgment restoring the possession thus taken because one joint tenant can not maintain replevin against his co-owner. It is conceded by the majority of the court of appeals that if Mr. Alexander obtained the full title to the mare the judgment was right. But they say: “Assuming that Green sold his interest in the mare to the plaintiff, and that Mrs. Green still holds her interest, the defendant would be entitled to a judgment for costs.” In other words, although one joint owner can not maintain replevin against his co-owner, for the possession of joint property, he may maintain the possession wrongfully obtained by the writ of replevin after he has been defeated in such action.
"With the utmost respect for our brethren of the court of appeals, we must say we can not subscribe to such logic. Cross v. Hulett, supra, is not authority for such a position. The position is absolutely contradictory. It sanctions the taking and obtaining of the possession of joint property held by one joint owner by his co-owner by means of the writ of replevin, and in the same breath asserts that replevin can not be maintained in such a case. It permits and approves that which it condemns as a legal solecism. We hold that in this case the jury found that defendant was entitled to the sole possession of the mare in controversy, and there was sufficient evidence to justify that finding; that there was no partnership between Green and wife in the mare; that Mrs. Green was not estopped, neither are those who purchased the mare from her. We hold, moreover, that while it is true [369]*369that one joint owner can not maintain replevin from his co-owner'of joint property, yet if he does resort to replevin and obtain an order of delivery and by means thereof obtains actual possession of the joint property, and is defeated in the action, the judgment must restore to the defendant the property obtained by means of the writ or process. The courts are not without power to restore the statu quo which is disturbed by one tenant wrongfully obtaining a writ of replevin and taking joint property from his co-owner. Nothing less than a judgment for the property, or for his joint right therein, would restore to the successful defendant the possession of his property taken from him by a writ improvidently granted, and nothing less would preserve the spirit of the law itself. Cobbey on Replevin, 672; Jacob’s L. Die., p. 500.
The judgment of the circuit court is affirmed.
Sherwood and Burgess, JJ., concur.