
    S. E. Wright and H. L. Scott v. L. Dudgeon, Appellant.
    Election of remedies: exchange of property: rescission: recovery of possession. Where one brings an action to rescind a trade on the ground of fraud and recovers judgment for the value of the property given by him in the exchange, he cannot thereafter claim ownership of the property received by him as against an action for its possession by the other party; nor has he a right to retain the possession of property except by proper legal proceedings to subject the same to the satisfaction of his judgment.
    Thursday, June 4, 1908.
    
      Appeal from Wapello District Court.— Hon. M. A. Roberts, Judge.
    This action was first instituted before a justice of the peace to recover the possession of a roan mare called “ Dove,” of which the plaintiffs claimed to' be the owners, and which they alleged to be wrongfully detained from them by defendant. In the justice’s court there was a verdict for the defendant and a finding of the jury that the value of the mare was $20. The defendant appealed to the district court, where the case was tried without a jury, and the court rendered judgment in favor of the plaintiffs awarding to them the possession of the mare. On a certificate granted by the trial judge the defendant appeals.—
    
      Affirmed.
    
    
      Smith & Lewis, for appellant.
    
      Steele, Daugherty & Steele, and Jacques & Jacques, for appellees.
   McClain, J.

The defendant obtained possession of the animal to which this action relates in a trade between him and the plaintiffs, in which the defendant delivered to plaintiffs a sorrel horse and received in exchange this roan mare. Subsequently this defendant brought an action against the plaintiffs, in which he alleged that by false and fraudulent representations as to the age, value, and qualities of the roan mare he was induced to exchange his sorrel horse for her, and that the defendants had sold the horse and put it beyond their power to restore him; wherefore he tendered back the mare and demanded the sorrel horse, which demand was refused. And he alleged that he stood ready to return said roan mare, and claimed as damages the value of the sorrel horse in the sum of $90, loss of the use of-said horse in the sum of $15, and costs for keeping the roan mare in the sum of $12. The defendants in that action denied false representations, and on the trial of the issue thus raised the court instructed the jury that, if the plaintiff in that action established the fraudulent representations relied upon and showed that he offered to return the mare to defendants within a reasonable time, then they should find for the plaintiff, and allow him as damages such sum as the evidence showed the sorrel horse to have been reasonably worth in the market at the time of the trade, not exceeding his value as stated in the petition, and also the cost of keeping the mare after she was tendered back. The jury found a verdict for plaintiff, and judgment was rendered thereon in his favor, a portion of which judgment was subsequently paid to the plaintiff in said action by one of the defendants therein.

It is conceded that prior to the commencement of the present action plaintiffs made a demand upon the present defendant for the possession of the roan mare. It is apparent that the judgment which this defendant recovered in his former action against these plaintiffs was predicated upon a rescission of the sale for fraud. Plaintiff in that action did not seek to recover the difference in value between the animal which he had received in the trade and the one which he had given to plaintiffs, but he asked judgment for the entire value of the animal which he had given in exchange, and which the defendants in that action had sold, placing it beyond their power to restore him. And said plaintiff also asked as an item of recovery the expense of keeping the mare from the time of such tender until the time of the trial. Plaintiff recovered therefor on the theory that the sale was rescinded, and that he was holding the mare as the property of the defendants in that action. Having elected to rely on that theory of his right to recover in the former action, and.having recovered judgment on such theory, appellant cannot now insist that he is the owner of the .mare. It must he presumed that the verdict of the jury in the former action in favor of the plaintiff therein was for the entire value of the horse which he had given defendants in that action in exchange for the mare, and it was not open to him after the recovery of such judgment to show by affidavits of jurors that they determined the amount of their verdict by finding the difference between the value of the horse which the defendants in that action had received and sold and the value of the mare which this appellant as plaintiff in that action still retained. If the jurors returned a verdict on that basis, they violated the instructions, of the court, and we know of no authority for collaterally impeaching a judgment by affidavits of jurors subsequently secured that they took into consideration other facts than those upon which by the instructions of the court they were bound to determine the amount of such verdict.

The contentions for appellant seem to be, first, that even after this appellant had recovered a money judgment on the former trial the defendants in that judgment were entitled to the possession of the mare which remained in appellant’s possession only upon tendering a return of the sorrel horse; and, second, that said defendants were entitled to the possession of the mare only on a iull satisfaction of the judgment against them. It is sufficient to say as to the first of these contentions that the money judgment was a full satisfaction of the breach of duty on the part of the defendants in that judgment in not returning the sorrel horse when demanded; and the complete answer to the second contention is that, after the rendition of the money judgment in appellant’s favor in the former action, he held the mare as the property of these plaintiffs with no judgment lien thereon, but subject to be applied by proper legal proceedings to the satisfaction of his judgment against these plaintiffs. Appellant has taken no steps to secure the application of this property of the plaintiffs which he holds to the satisfaction of his judgment, but has asserted the right to retain possession as owner. This it is plain he cannot do.

The judgment of the trial court is affirmed.  