O'Hara v. Parker, 27 Or. 156 (39 Pac. 1004). The complaint alleges, the court found, and the evidence shows conclusively, that, at the time the suit was commenced, the defendant Lee was, and had been for some time, in possession of at least a portion of the premises, occupying the only building thereon, and was asserting and claiming possession of the remainder. The plaintiff seeks to have his title to the entire tract quieted, but is admittedly not in possession of a considerable portion thereof, and is therefore as effectually barred from the relief sought as if entirely out of possession. It may be, under proper pleadings and evidence, that the court could, in a case of this character, ascertain what definite part of a tract of land, if any, a plaintiff is in possession of, and quiet his title thereto; but nothing of that sort was attempted by the pleadings and evidence in this case. We think, therefore, the court had no jurisdiction to determine the dispute between the parties by a proceeding in equity. The decree of the court below must therefore be reversed, and the complaint dismissed. REVERSED.

Decided 4 February; rehearing denied 4 March, 1901.

1. Hill's Ann. Laws, § 76, authorizes the plaintiff to allege in his reply any new matter, not inconsistent with the complaint, which constitutes a defense to new matter in the answer. A complaint alleged ownership and possession of the boiler sued for when it was unlawfully seized. The answer averred that the boiler was real estate, and duly seized on execution against R, its owner. The reply alleged that R had detached the boiler, and delivered the possession thereof to the plaintiff, to whom he gave a chattel mortgage on it, and that the conditions of the mortgage had been broken. Held, that the reply did not constitute a departure, since evidence of the facts alleged in the reply was admissible under the allegations of the complaint, and hence the reply was not inconsistent therewith.

COMPETENT EVIDENCE OF NOTE AND MORTGAGE REPLEVIN.

2. Where plaintiff in replevin, relying on a chattel mortgage, testified, without objection, that he held the property under such mortgage, and was in actual possession of it until a certain note was paid, the complaint was supported by competent evidence, though the note and mortgage were not introduced, the proof of immediate delivery and retention by the mortgagee obviating the necessity of proving the filing of the mortgage, and the presumption being, from the proof of the execution of the note, that it was still in force, six years not having expired.

PLEADING SURPRISE.

3. A defendant in replevin ought not to be surprised if plaintiff offers proof of a special property in the subject of litigation under a general allegation of ownership, where the reply set forth the facts as to the special ownership.

From Douglas: JAS. W. HAMILTON, Judge.

Action by J. G. Mayes against R. L. Stephens to recover the possession of a tubular boiler, or its value in case possession thereof cannot be secured, and damages for its detention; the plaintiff substantially alleging that he is the owner and was in the possession of the property when it was unlawfully seized by the defendant, who refused to surrender it upon a demand therefor, and that he is entitled to the immediate possession thereof. The defendant denied the material allegations of the complaint, and averred that said boiler was real estate which he, as sheriff of Douglas County, Oregon, attached as the property of one G. W. Riddle, in pursuance of a writ duly issued out of the circuit court for said county in an action wherein the latter was defendant, which acts constitute the alleged wrongful seizure and detention of which the plaintiff complains. The reply denied the material allegations of the answer, and averred that prior to such seizure Riddle detached said boiler, and delivered the possession thereof to the plaintiff, to whom he also gave a chattel mortgage thereon to secure a promissory note for the sum of $500, payable on demand, which

38 OR.-33.

mortgage was immediately filed with the clerk of said county, and provided that, if said property was attached by the creditors of the mortgagor, the said note should at once become due and payable, and that plaintiff might sell the boiler in the manner prescribed by law. The reply further averred that said conditions have been broken. The court, upon motion, struck out the allegations of new matter in the reply, and, plaintiff having introduced his testimony and rested, a judgment of nonsuit was given, whereupon he appeals. REVERSED.

For appellant there was a brief over the name of Coshow & Sheridan, with an oral argument by Mr. O. P. Coshow.

For respondent there was a brief and an oral argument by Mr. J. C. Fullerton.

MR. JUSTICE MOORE, after stating the case, delivered the opinion of the court.

I. It is contended by plaintiff's counsel that the court erred in striking out the allegations of new matter in the reply, while defendant's counsel maintain that the averments so stricken out constituted a departure from the allegations of the complaint, and hence no error was committed in this respect. The statute permits a plaintiff to allege in his reply any new matter not inconsistent with the complaint, which constitutes a defense to new matter in the answer: Hill's Ann. Laws, § 76. The facts relied upon as a ground of action should generally be stated in the complaint; for, if the reply allege matter which constitutes an original cause of action, the averment of the latter pleading will be treated as a departure: Lillienthal v. Hotaling Co., 15 Or. 371 (15 Pac. 630); Wyatt v. Henderson, 31 Or. 48 (48 Pac. 790); Fisk v. Basche, 31 Or. 178 (49 Pac. 981). signment in the reply, designed to affirm the averments of

But a new as

the complaint by correcting the defendant's mistake in regard thereto, is not a departure: Bliss, Code Pl. (2 ed.), § 396. Matter which sustains a pleading is no departure, if set up in the reply, though it might have been set out in the complaint (Fitnam, Trial Proc., § 581), the rule being that the complaint and reply, when not repugnant, should be read together to determine the pleader's intent: Lavery v. Arnold, 36 Or. 84 (57 Pac. 906, 58 Pac. 524); Cederson v. Oregon Nav. Co., 38 Or. 343 (62 Pac. 637). In Conklin v. Botsford, 36 Conn. 105, an action having been commenced to recover damages for the conversion of a horse and a quantity of hay, it was alleged in the complaint that said property was "the plaintiff's own proper estate." The answer averred that the defendant, as an officer, in pursuance of an execution against the plaintiff, levied upon and sold the property. The reply alleged that the horse and hay, at the time they were seized, were held by him in right of his wife, as trustee for her under the statute. A demurrer to the reply having been interposed, it was held that there was no departure between the complaint and the reply. In Merchants' Nat. Bank v. Richards, 6 Mo. App. 454, an action was instituted to recover a dividend on certain shares of capital stock which the complaint alleged the plaintiff owned and held, and, the reply having averred that he held said stock as a pledge, it was held that no departure existed, and the judgment thus rendered was affirmed on appeal: Merchants' Nat. Bank v. Richards, 74 Mo. 77. A departure occurs when a party in a subsequent pleading abandons the cause of action which he at first stated, and chooses another, inconsistent with, and which does not support or fortify, the theory originally adopted: 6 Enc. Pl. & Prac., 460. In Herring v. Skaggs, 73 Ala. 446, it was held that, while it is a general rule of pleading that a replication must not depart from the allegations of the declaration in any substantial manner, yet, when the cause of action is stated generally in

the declaration, the plaintiff may, if necessary, in a replication to a special plea, restate it in a more minute and circumstantial manner. To the same effect, see Trustees v. Hartfield, 5 Ark. 551; Palmer v. Hayes, 112 Ind. 289 (13 N. E. 882); Hallett v. Slidell, 11 Johns. 56; Troup v. Smith's Ex'rs, 20 Johns. 33; Rosby v. St. Paul, M. & M. Ry. Co., 37 Minn. 171 (33 N. W. 698); Houston v. Sledge, 101 N. C. 640 (8 S. E. 145, 2 L. R. A. 487).

The test of departure is determined by a negative answer to the inquiry whether evidence of the facts alleged in the reply is admissible under the allegations of the complaint: 6 Enc. Pl. & Prac. 462; Estes v. Farnham, 11 Minn. 423. Applying to the case at bar the standard thus suggested for ascertaining a departure in a pleading, the question is presented whether evidence of the plaintiff's special property in the boiler by reason of his chattel mortgage thereon was admissible under the allegation of his general ownership thereof, as stated in the complaint. The statute confers upon the mortgagee of chattels the right to their immediate possession whenever a breach occurs in the condition of the mortgage, and, if possession thereof be not delivered to him upon demand, he may recover the same in an action therefor: Hill's Ann. Laws, §§ 132, 3837. It was formerly held in this state that a mortgage of chattels created only a lien upon the property affected thereby (Chapman v. State, 5 Or. 432; Knowles v. Herbert, 11 Or. 240, 4 Pac. 126); but it was subsequently determined that upon a breach of the condition of a chattel mortgage the mortgagee thereby secured a qualified ownership in the property: Case Threshing Mach. Co. v. Campbell, 14 Or. 460 (13 Pac. 324); Marquam v. Sengfelder, 24 Or. 2 (32 Pac. 676); Reinstein v. Roberts, 34 Or. 87 (75 Am. St. Rep. 564, 55 Pac. 90). In Moorhouse v. Donaca, 14 Or. 430 (13 Pac. 112), the plaintiff, having commenced an action to recover the possession of a header, alleged in the complaint that he was the owner