The defendants, in argument, make no claim that the plaintiff waived his right to reclaim the property by attaching it, and therefore this question is not considered.
As against the insolvent and his assignee, the plaintiff's title was valid although no memorandum, affidavit, or record was made, as required by the statute. Adams v. Lee, 64 N.H. 421. As against the defendant Cross, who was a subsequent purchaser without notice, the plaintiff's title to the property, other than "household goods," was subject to the Cross mortgage. P. S., c. 140, s. 23. It appeared that the Knapps had made additions to the original property, which at the time of the replevy were of the value of $409. These were included in the mortgage to Cross. It is assumed that these and the other property included in the mortgage, aside from household goods, were of sufficient value to pay the balance due upon the Cross note. If
they were, Cross should have judgment for the amount due him, and the plaintiff should have judgment for the goods replevied which were included in the sale. Whether Cross had a lien upon such of the property as were household goods is not considered.
The general issue in replevin simply denies the wrongful taking. Mitchell v. Roberts, 50 N.H. 486, 490; Carter v. Piper, 57 N.H. 217. To properly raise the question of the plaintiff's title, the defendants should have pleaded property in some one else, denying that it was in the plaintiff. Dickinson v. Lowell, 35 N.H. 9, 19. The evidence to which the plaintiff excepted was not relevant to the issue raised, and was therefore improperly received. The defendants, however, at the trial term, may ask leave to amend by filing a plea of property and to recommit the report. Morse v. Whitcher, 64 N.H. 591, 593. If leave is granted, the evidence improperly received will then be competent, and the plaintiff may submit evidence upon the new issue to contradict the testimony of the defendants.
Judgment set aside.
YOUNG, J., did not sit: the others concurred.