Biggs, J.
This is an action for replevin of a mare. The plaintiff gave bond, and the animal was delivered to him. The jury found the issues for the defendant, and assessed the value of the mare at $70 and the damages at $50. Thereupon the court entered judgment in favor of the defendant for the-[300]*300return of the mare or the assessed value, and also the damages. From that judgment the plaintiff has appealed.
There is but little conflict in the evidence touching the controlling facts. In 1887, E. W. Q-reen and Eliza O. Oreen, his wife, bought at public sale a lot of personal property aggregating in value over $1,000. The mare in controversy was included in the purchase. Whether the property was bought under a partnership agreement, the evidence does not disclose. It merely shows a joint purchase. The individual funds of Oreen and those of his wife were used in paying for the property; in what proportion does not appear. In February, 1888, a farm belonging to Oreen and his wife was about to be sold under a deed of trust. The holder of the mortgage debt agreed to postpone the foreclosure sale, if Oreen would pay one hundred dollars on the debt. Oreen borrowed the amount from the plaintiff, and secured the extension. To secure the loan Oreen gave to the plaintiff an absolute bill of sale of the mare in controversy, with the private understanding that Oreen should have the right of repurchase upon repayment of the loan with interest and reasonable charges for the keep of the animal. Under this agreement the mare was delivered to the plaintiff, and he retained possession of her until September following. The evidence- tends to show that Mrs. Oreen knew of the facts attending this transaction, and made no objection to it. Whether plaintiff was advised of her joint ownership is not shown. In September, 1888, Oreen executed a new note to plaintiff for $200, which amount included the original loan, the charges for keeping the mare for six months, and perhaps some other small items of indebtedness. As additional security Oreen gave plaintiff a chattel mortgage on two colts. To save the expense of keep[301]*301ing the mare in the city it was then agreed that Green should take her to the country, but that she should remainthe property of the plaintiff until his debt was fully paid. Afterwards Green made a payment of $90 on plaintiff’s debt. The two colts disappeared, and the plaintiff realized nothing from them. This is the history of plaintiff’s title to the mare, as shown by his evidence.
The defendant' held the mare as the agent or bailee of R. N. Alexander. On the eighth day 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 property is described in the mortgage as follows, to wit:
“One green painted skeleton wagon: one black painted two-seated park wagon with top; one Murphy farm wagon; one Giant corn grinder; one Dicks, Canton, Ohio, feed cutter; one yellow painted racing cart; one new Clipper mowing machine; one Calhoun hay rake; one pair gray mules, gray mane and tail, nine and ten years old; one bay Jersey cow, called Evergreen Queen, with light brown stripe running on center of back; one fawn and white Jersey cow, called Piute O’Fallon; one fawn and white Jersey O’Fallon cow; one registered Jersey bull, squirrel-gray, about one year old, called Melrose Gold; five Jersey heifers; one Cornelia Sprague bay mare, two years old; one bay mare, called Fleda; one yearling colt, called Diamond Sprague; one weaning colt, called St. George Sprague; one set of rubber mounted double harness; one set of farm harness; one set of track harness; one Caffery sulky; one Toomy sulky; one* driving cart; one black stallion called Valentine Sprague; one Domestic sewing machine, number 1139046; two W-. stands; one Buck & Brilliant cook stove and utensils; one Quick Meal gasoline stove; one [302]*302W. table; three mattresses; three bed springs; one wash machine; six Brussels carpets; three walnut wardrobes; one fourth M. T. bureau; one M. T. wash stand; one W. bed-stead; one ebony mantel clock; one haircloth parlor set, eight pieces; two hanging lamps; one W. M. T. center table; one ashM. T. sideboard; one book rack, with fifty volumes of books; one Crown Jewel heating stove, with zinc and pipes; one ash secretoir table; one ratan seated rocker; six ash S. chairs; three W. M. T. bed room suits, three pieces each; one Famous heating stove, with zinc and pipe; all the halls and stair carpets; all the bedding, pillows, linen ware and mattresses; all the silver and plated ware; all the glassware; all other furniture and utensils in the house; all the stock and all the 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 the Peters’ mortgage Green absconded, leaving his wife and creditors behind. Among the creditors was R. N. Alexander. To save, if possible, his debt, Alexander bought the Peters debt and took possession of the mortgaged property. He also took possession of the mare in controversy, claiming that she was conveyed by the mortgage. He afterwards sold her under the mortgage and bought her in. The plaintiff was present at the sale, and he notified the bidders of his claim to the mare. This is the evidence in support of the title of Alexander.
The court refused all instructions asked by the plaintiff, and gave all asked by the defendant. Among the defendant’s instructions is the following:
“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. [303]*303Green only, and that he has not secured the title of Eliza C. Green, then they must find for the defendant.”
There is no substantial evidence that Mrs. Green was the sole owner of the mare; for that reason the instruction ought to have been refused.
In reference to the ownership of Mrs. Green, Green testified as follows:
“I bought her (the mare) with part of my money and part of my wife’s money, and never sold her. I had a transaction in regard to her with Mr. Ingals.” Then follows the history of the dealings between the plaintiff and witness, as heretofore stated. E. W. Green, one of the defendant’s witnesses and a son of E. W. Green, testified:
“I lived on the farm from 1884 to 1889, and knew the mare, Julia. My stepmother, Mrs. Eliza C. Green, and E. W. Green owned the property sold at the Scott' sale; it was bought in my mother’s name.” Henry L. Sutton, the auctioneer, testified that E. W. Green bought at the Scott sale over a thousand dollars’ worth of property; that the property was bid off in the name of his wife; that their joint note was given; that the note was'paid in eight or ten installments of about seventy-five dollars each; that the payments were made by Green, and that Green told him that the money had been earned by Mrs. Green in teaching school. This .was all the evidence bearing on the question of Mrs. Green’s title.
What Green told Sutton about the money which he paid to him on the note was not competent evidence; but, as it was admitted without objection, it must be considered. Giving the testimony of Sutton due weight, it does not tend to disprove the fact testified to by Green and his son, that the property was owned jointly by Green and his wife and that the money of [304]*304each was used in its purchase.
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Biggs, J.
This is an action for replevin of a mare. The plaintiff gave bond, and the animal was delivered to him. The jury found the issues for the defendant, and assessed the value of the mare at $70 and the damages at $50. Thereupon the court entered judgment in favor of the defendant for the-[300]*300return of the mare or the assessed value, and also the damages. From that judgment the plaintiff has appealed.
There is but little conflict in the evidence touching the controlling facts. In 1887, E. W. Q-reen and Eliza O. Oreen, his wife, bought at public sale a lot of personal property aggregating in value over $1,000. The mare in controversy was included in the purchase. Whether the property was bought under a partnership agreement, the evidence does not disclose. It merely shows a joint purchase. The individual funds of Oreen and those of his wife were used in paying for the property; in what proportion does not appear. In February, 1888, a farm belonging to Oreen and his wife was about to be sold under a deed of trust. The holder of the mortgage debt agreed to postpone the foreclosure sale, if Oreen would pay one hundred dollars on the debt. Oreen borrowed the amount from the plaintiff, and secured the extension. To secure the loan Oreen gave to the plaintiff an absolute bill of sale of the mare in controversy, with the private understanding that Oreen should have the right of repurchase upon repayment of the loan with interest and reasonable charges for the keep of the animal. Under this agreement the mare was delivered to the plaintiff, and he retained possession of her until September following. The evidence- tends to show that Mrs. Oreen knew of the facts attending this transaction, and made no objection to it. Whether plaintiff was advised of her joint ownership is not shown. In September, 1888, Oreen executed a new note to plaintiff for $200, which amount included the original loan, the charges for keeping the mare for six months, and perhaps some other small items of indebtedness. As additional security Oreen gave plaintiff a chattel mortgage on two colts. To save the expense of keep[301]*301ing the mare in the city it was then agreed that Green should take her to the country, but that she should remainthe property of the plaintiff until his debt was fully paid. Afterwards Green made a payment of $90 on plaintiff’s debt. The two colts disappeared, and the plaintiff realized nothing from them. This is the history of plaintiff’s title to the mare, as shown by his evidence.
The defendant' held the mare as the agent or bailee of R. N. Alexander. On the eighth day 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 property is described in the mortgage as follows, to wit:
“One green painted skeleton wagon: one black painted two-seated park wagon with top; one Murphy farm wagon; one Giant corn grinder; one Dicks, Canton, Ohio, feed cutter; one yellow painted racing cart; one new Clipper mowing machine; one Calhoun hay rake; one pair gray mules, gray mane and tail, nine and ten years old; one bay Jersey cow, called Evergreen Queen, with light brown stripe running on center of back; one fawn and white Jersey cow, called Piute O’Fallon; one fawn and white Jersey O’Fallon cow; one registered Jersey bull, squirrel-gray, about one year old, called Melrose Gold; five Jersey heifers; one Cornelia Sprague bay mare, two years old; one bay mare, called Fleda; one yearling colt, called Diamond Sprague; one weaning colt, called St. George Sprague; one set of rubber mounted double harness; one set of farm harness; one set of track harness; one Caffery sulky; one Toomy sulky; one* driving cart; one black stallion called Valentine Sprague; one Domestic sewing machine, number 1139046; two W-. stands; one Buck & Brilliant cook stove and utensils; one Quick Meal gasoline stove; one [302]*302W. table; three mattresses; three bed springs; one wash machine; six Brussels carpets; three walnut wardrobes; one fourth M. T. bureau; one M. T. wash stand; one W. bed-stead; one ebony mantel clock; one haircloth parlor set, eight pieces; two hanging lamps; one W. M. T. center table; one ashM. T. sideboard; one book rack, with fifty volumes of books; one Crown Jewel heating stove, with zinc and pipes; one ash secretoir table; one ratan seated rocker; six ash S. chairs; three W. M. T. bed room suits, three pieces each; one Famous heating stove, with zinc and pipe; all the halls and stair carpets; all the bedding, pillows, linen ware and mattresses; all the silver and plated ware; all the glassware; all other furniture and utensils in the house; all the stock and all the 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 the Peters’ mortgage Green absconded, leaving his wife and creditors behind. Among the creditors was R. N. Alexander. To save, if possible, his debt, Alexander bought the Peters debt and took possession of the mortgaged property. He also took possession of the mare in controversy, claiming that she was conveyed by the mortgage. He afterwards sold her under the mortgage and bought her in. The plaintiff was present at the sale, and he notified the bidders of his claim to the mare. This is the evidence in support of the title of Alexander.
The court refused all instructions asked by the plaintiff, and gave all asked by the defendant. Among the defendant’s instructions is the following:
“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. [303]*303Green only, and that he has not secured the title of Eliza C. Green, then they must find for the defendant.”
There is no substantial evidence that Mrs. Green was the sole owner of the mare; for that reason the instruction ought to have been refused.
In reference to the ownership of Mrs. Green, Green testified as follows:
“I bought her (the mare) with part of my money and part of my wife’s money, and never sold her. I had a transaction in regard to her with Mr. Ingals.” Then follows the history of the dealings between the plaintiff and witness, as heretofore stated. E. W. Green, one of the defendant’s witnesses and a son of E. W. Green, testified:
“I lived on the farm from 1884 to 1889, and knew the mare, Julia. My stepmother, Mrs. Eliza C. Green, and E. W. Green owned the property sold at the Scott' sale; it was bought in my mother’s name.” Henry L. Sutton, the auctioneer, testified that E. W. Green bought at the Scott sale over a thousand dollars’ worth of property; that the property was bid off in the name of his wife; that their joint note was given; that the note was'paid in eight or ten installments of about seventy-five dollars each; that the payments were made by Green, and that Green told him that the money had been earned by Mrs. Green in teaching school. This .was all the evidence bearing on the question of Mrs. Green’s title.
What Green told Sutton about the money which he paid to him on the note was not competent evidence; but, as it was admitted without objection, it must be considered. Giving the testimony of Sutton due weight, it does not tend to disprove the fact testified to by Green and his son, that the property was owned jointly by Green and his wife and that the money of [304]*304each was used in its purchase. Conceding that the money paid to Sutton did belong to Mrs. Green, this leaves at least $250 of the purchase money unaccounted for. The purchase exceeded one thousand dollars, and under Sutton’s testimony the note given did not exceed $750. Therefore, if the sole ownership of Mrs. Green is to rest on the fact merely that she paid the purchase money for the stock bought at the Scott sale, the claim has no support in the evidence.
The instruction is open to another serious objection. By it the jury were told that, if Mrs. Green did not sell the mare to the plaintiff, then there could be no recovery, thus entirely ignoring the plaintiff’s evidence that Mrs. Green was fully advised of the action of her husband in pledging the mare for their joint benefit, and that she acquiesced in, or, at least, made no objection to, the transaction. A married woman in respect of her separate estate, to which she may pass the title by parol and delivery, may by her conduct or declarations create an estoppel against herself. Rannels v. Gerner, 80 Mo. 474; Cottrell v. Spiess, 23 Mo. App. 35. Therefore, in the present case, if Mrs. Green knew that her husband assumed to deal with -the mare as sole owner, and she acquiesced therein, and the plaintiff was thereby deceived and gave credit to Green on the faith that he was the exclusive owner, then Mrs. Green, and a third person claiming under her, is estopped to assert her ownership.
In view of another trial, we deem it expedient to extend the discussion to other phases of the case. The judgment was in the usual form, that is, for the recovery of the mare or her assessed value, and the damages. This judgment was unauthorized. If the defendant had shown that Alexander had the full title, then the judgment would have been right. But the evidence will not admit of any such finding. Let us examine [305]*305Alexander’s title. His sole claim to the mare is that she was conveyed by the Peters’ chattel mortgage. In this he is mistaken. The instrument describes certain property, including some live stock, in which it is not claimed that the mare Julia was included. The. concluding sentence in the description, to wit, “all the stock and all implements on the farm known as the Evergreen farm, etc.” was intended to fix the location of the property previously described, and not to include other property which might then be on the farm. But, if the latter construction was permissible, there is no proof that the mare was on the farm at the time the mortgage was executed. On the contrary, Green testified that, after he received her back from the plaintiff, she was off the farm a great deal of the time.
It has been decided quite often in this state that one tenant in common can not maintain replevin for the comqaon property .against his cotenant. The reason is obvious. Whether the action is maintainable by one of the joint owners against a person who is a stranger to the title, has not been decided; the weight of authority in other states, however, would seem to indicate that the defense of a joint ownership, is open to anyone. Collier v. Yearwood, 5 Baxter (Tenn.), 581; Hart v. Fitzgerald, 2 Mass. 509; Pickering v. Pickering, 11 N. H. 141; Reed v. Middleton, 62 Iowa, 307; Williams v. Patten, 131 Mass. 50; McArthur v. Laud, 15 Me. 245. Assuming that Green sold bis interest in the mare to the plaintiff, and that Mrs. Green still holds her interest, the defendant would only be entitled to a judgment for costs. He could not have a judgment for the recovery of the property, or its assessed value. Cross v. Hulett, 53 Mo. 397.
[306]*306The contention made by appellant, that Green and wife held the mare as partnership property, has no foundation in fact. It is true that a husband and wife may own property jointly or may enter into a copartnership agreement (Dunifer v. Jecko, 87 Mo. 282), but a partnership can only be established by agreement or' contract. The mere fact that two or more persons purchase property jointly does not of itself constitute a partnership.
The judgment of the circuit court will be reversed, and the cause remanded. As Judge Bond thinks that the opinion is opposed to the decisions of the supreme court in the following cases: Cross v. Hulett, 53 Mo. 397; Blodgett v. Perry, 97 Mo. 273; Raysdon v. Trumbo, 52 Mo. 35; Fitzgerald v. Barker, 96 Mo. 661; Spooner v. Ross, 24 Mo. App. 603, and other cases cited in his dissenting opinion, the cause will be certified to the supreme court. It is so ordered.
DISSENTING OPINION.