Epitomized Opinion

The Mortgage Co. brought action' in replevin in the lower court to recover from Adams possession of a McFarland automobile. Adams executed a redelivery bond in the sum of $5,000 and the sheriff returned the automobile to him. The Mortgage Co. claimed special ownership by virtue of a chattel mortgage but the lower court found that the property described in the mortgage was not the automobile in the possession of Adams. The Mortgage Co. insists that Adams admitted the identity of the automobile by executing the re-delivery bond and is now estopped from denying that it is the automobile described in the mortgage. The affidavit for replevin and the sheriff’s order of delivery mentioned the model and the engine number of the machine but the re-delivery bond made no mention of this. Held by Court of Appeals in affirming the Common Pleas Court:

1. Where there is no better evidence of the identity of property, a re-delivery bond executed by the party in possession will not be considered an admission of the identity of such property, and such person is not estopped from denying that his property is not that claimed in an action for replevin. The court distiguishes this case from 51 Ohio St. 6.