
    Miller, Respondent, vs. Hackbarth, Appellant.
    
      October 6
    
    October 24, 1905.
    
    
      Exchange of property: Fraud-: Representations as to incumbrances: Rescission: Replevin: Pleading.
    
    1. Plaintiff traded horses with one M., who asserted positively that no mortgage existed against his horse. M. had often sold cattle to plaintiff, the title to which had proved good, and there was nothing to arouse suspicion as to his veracity. The trade was made in the evening, and the records of chattel mortgages were at a distance in an adjoining township. Held, that it was consistent with ordinary care for plaintiff to rely upon M.’s assertion, and that upon discovering its falsity he had a right to rescind the trade and revest himself with the title to his horse.
    .2. The modern action of replevin, under our statutes, is a plain action for the recovery of personal property, the gravamen of which is the unlawful detention; and the existence or nonexistence of any trespass by defendant in acquiring the property is immaterial to the relief, except as it may color the subsequent possession. An allegation of unlawful taking is therefore unnecessary, and may be treated as surplusage.
    
      Aepeal from a judgment of tbe circuit court for Milwaukee county: Laws®woe W. Halsey, Circuit Judge.
    
      Affirmed.
    
    Action commenced in justice’s court upon affidavit alleging that defendant bad' unjustly taken and unjustly detained a •certain borse of value of $100, to possession of wbicb plaintiff was entitled. Upon appeal to circuit court tbe case was •tried de novo, and it appeared, without dispute, tbe plaintiff bad traded tbe borse in question to one August Miller for another borse, wbicb proved to be incumbered by a chattel mortgage, contrary to express representations by Miller. The borse so received by plaintiff having been taken from him under tbe chattel mortgage, and August Miller having absconded, plaintiff went to tbe Ootzbausen farm, of wbicb August bad charge, and found tbe borse in tbe possession of tbe defendant, from whom be demanded it, but who refused to .give it up, referring plaintiff to Arthur Ootzbausen, who', upon application to him, refused delivery. Whereupon this action was brought. No proof was offered as to bow possession or any rigllts in tbe horse bad devolved from August Miller to tbe defendant, except that tbe former bad abandoned the Ootzbausen farm.
    At the close of tbe evidence tbe court directed a verdict that the plaintiff was entitled to possession and was tbe owner of the property; that tbe defendant unlawfully took and detained tbe same; that tbe value was $100, and damages six ■cents; upon wbicb judgment in favor of tbe plaintiff was accordingly rendered, from which tbe defendant brings this appeal.
    
      Arthur Ootzhausen, for tbe appellant.
    Eor tbe respondent tbe cause was submitted on tbe brief ■of Edgar L. Wood. ■
    
   Hodge, J.

There is no contradiction of tbe plaintiff’s evidence that be was induced to part with tbe borse in question to August Miller upon tbe representation that tbe latter owned tbe horse traded therefor unincumbered; nor that this statement was false and that the horse received by plaintiff in consideration of the trade was taken from him under a mortgage and wholly lost to him; nor that he demanded possession from the defendant, in whose custody he found his horse; nor that the defendant refused to give it up, as also did Mr. Arthur Cotzhausen, to whom plaintiff also applied. Upon this state of facts but two questions of law arise:

1. Was the representation by August Miller such that'the plaintiff might reasonably have relied upon it and been thereby induced to part with his horse, so that, upon discovering its falsity, he had a right to rescind and revest himself with the title ? Upon this question we think the conclusion of the-court was right. We are aware of the numerous decisions to the effect- that silence, or in some cases even express misrepresentation as to facts appearing by public record, cannot be-considered sufficient to constitute legal fraud, for the reason that under the circumstances in such various cases the record information of their falsity was open and accessible and would have come to the notice of one in the ordinary course of doing such business. The degree of observation required to-be observed and the knowledge imputed to one buying goods, from another is discussed at considerable length in Kaiser v. Nummerdor, 120 Wis. 234, 97 N. W. 932. That the rule that statements or representations by a party, whose falsity might be discovered by careful inspection of public records, can never be legal fraud, is not universal, is shown by several decisions in this state (Booth v. Ryan, 31 Wis. 45; Zunker v. Kuehn, 113 Wis. 421, 88 N. W. 605; Lockwood v. Allen, 113 Wis. 474, 89 N. W. 492; Hurlbert v. T. D. Kellogg L. & Mfg. Co. 115 Wis. 225, 91 N. W. 673); and the test must be, as stated in Kaiser v. Nummerdor, whether one in the exercise of that measure of observation customarily accompanying such transactions would have examined the record and discovered the falsity of the statements before relying oa them. In the present case the trade took place at West Allis in the evening. The records to which reference must have been made were located somewhere in the adjoining township of North Greenfield. There was nothing to arouse suspicion as to August Miller’s veracity; he having often sold cattle to the plaintiff without defects in his title being thereafter discovered. We think in this situation the court rightly held that it was not inconsistent even with ordinary care that the plaintiff should rely on the direct and positive assertion of the very material fact that no mortgage existed against the property received in trade.

2. The second legal obstacle to the conclusion of the trial court, urged by appellant, is that the present action was laid in cepitj alleging an unlawful taking as well as unlawful detention, but that the proof discloses no unlawful taking, and hence the action as laid is not sustained. . We agree with him as to the effect of the evidence. There is nothing to show that the defendant came into the custody of this horse unlawfully, but merely that he refused to deliver it up when the plaintiff demanded it. Appellant supports his contention upon the law by citation of Ronge v. Dawson, 9 Wis. 246, and Child v. Child, 13 Wis. 18, to which might be added Oleson v. Merill, 20 Wis. 462. These cases, however, all dealt with the ancient action of replevin, originally an action -in tort based upon the trespass involved in the wrongful taking, ■which, however, had been enlarged at common law so as to include replevin in debinet, where the plaintiff waived the trespass and merely rested upon an unlawful detention. Much technicality and learning was expended upon this distinction, and it had been held, as stated in cases above cited, that, where the plaintiff framed his action upon the wrongful taking, he could not then recover possession merely for the wrongful detention. This subject, however, has become obsolete since the Code, which entirely eliminated the ancient common-law action of replevin as the means of regaining possession of chattels, and substituted, under a chapter entitled “Claims and delivery of personal property,” an “action to recover tbe possession of personal property,” and required for this action merely tbe fact and tbe allegation of wrongful detention. See Code, tit. 7, ch. 2, § 115, subd. 2, and ch. 128, R. S. 1858. True, it bas not been uncommon for tbe courts to refer to tbis new Oode action as replevin, and in 1818 tbe revisers returned to that word as a title for the chapter on tbe subject, but tbe undoubted purpose and effect of tbe codification, and of tbe present preservation of it in our statutes, was to substitute for tbe ancient common-law action of replevin, with its technical distinctions, a plain action for tbe recovery of personal property, where tbe existence or nonexistence of any trespass by tbe defendant in acquiring tbe property is immaterial to tbe relief, except as it may color tbe subsequent possession. Oleson v. Merrill, supra; Starke v. Paine, 85 Wis. 633, 55 N. W. 185. Tbe gravamen of tbe modem action for tbe recovery of possession of personal property is tbe unlawful detention thereof by the defendant, and tbe allegation in a pleading of an unlawful taking is unnecessary and mere sur-plusage, though tbe unlawful taking may still support an action of trespass to recover damages caused thereby. Hence we conclude that under tbe present affidavit plaintiff was entitled to recover upon proof of tbe unlawful detention.

By the Gourt. — Judgment affirmed.  