Moseley v. Cheatham

34 S.W. 543, 62 Ark. 133, 1896 Ark. LEXIS 147

Opinion

Wood, J.,

(after stating the facts). Replevin was not the remedy for appellee, under the proof in this case. Titsworth v. Frauenthal, 52 Ark. 254; Hart v. Morton, 44 Ark. 447; McKennon v. May, 39 Ark. 442; Person v. Wright, 35 Ark. 169; Ward v. Worthington, 33 Ark. 830.

Appellant was in the lawful possession of the crop, and had the right to retain same until it was divided, and replevin was not the remedy to enforce a division. Nor could appellant be required to surrender possession of the whole upon the payment to him of what his share or interest was worth. However, under the state of case presented by the proof, the appellee had equities which a court of chancery might well enforce. The cause is therefore reversed, with leave to amend the pleadings, and transfer to equity, if desired, and to have the cause disposed of according to the equity practice.