¶1 (concurring).
¶2 I concur in the order affirming the judgment. But I cannot concur in some of the implications of the opinion. I find nothing in the record to indicate any lack of good faith on the part of Borg; nor do I find anything in the record to justify an inference of any fraud practiced or attempted on the part of Borg. He paid in advance his money for the *537 car, to the man from whom, or through whom he was purchasing. When the car was available for delivery, Petty, on the order of Eelsted, knowingly and freely delivered the possession of the car to Borg. Felsted, the seller, as far as Borg was concerned, executed and delivered to Borg all necessary papers to secure registration of the car, and certificate of title. Borg therefore stood in the clear, except for the fact that Felsted his vendor, did not have title to the car. Because Felsted through misrepresentations deceived Petty who had the title to the car, and so did not acquire the title, he could pass none to Borg. But since Borg made no misrepresentations to Petty there was no fraud or deceit on his part. The following facts are evident from the record, and beyond that nothing need be said:
¶3 Petty had the title to the car; because of Felsted’s misrepresentations and wrongful handling of the transaction, he never obtained the title from Petty; Borg therefore received no title to the car from Felsted, his vendor; Petty not having transferred title, remained the owner of the car; as the owner in possession, Petty knowingly freely and lawfully delivered the possession of the car to Borg, who thereby obtained lawful possession. Petty, as owner of the car, was entitled to possession upon demand; he commenced this action in replevin without making a demand; Borg did not raise the question of demand in defense, but pleaded title in himself and sought redelivery to him of the car which had been taken by the sheriff under a writ of delivery; it is evident therefore that a demand by Petty for possession before suit would have been unavailing. In November, 1942, when Petty commenced his action the car was not in the state of Utah, nor in the personal physical possession of Borg, but Borg held the registered certificate of title; and the legal possession of the car, it being in the hand of his agent, subject to his order. In January, 1943, when summons was served, Borg personally had the physical possession of the car, and it was taken by the sheriff under writ.
¶4*538 Under such facts the legal questions are posed: (1) Can plaintiff maintain an action in replevin against a defendant, who at the time plaintiff begins his action is not personally in actual physical possession of the property; (2) under the facts in this case, was a demand a prerequisite to the maintenance of the action?
¶5 (1) Under our practice plaintiff may recover either the property or the value thereof. Dolinsky v. Williams, 56 Utah 186, 189 P. 873; Kunz v. Nelson, 94 Utah 185, 76 P. 2d 577, 115 A. L. R. 1322; Sec. 104-30-11, U. C. A. 1943. And section 104-16-1, U. C. A. 1943 provides that plaintiff may claim the delivery of the property to him pendente lite any time after filing complaint and before answer. It is essential that plaintiff plead a right of immediate possession of the property; that is he must plead a present tense right of possession, James v. Jensen, 50 Utah 485, 167 P. 827, and a wrongful detention by the defendant, Woodward v. Ed-munds, 20 Utah 118, 57 P. 848. Certainly, plaintiff after demand for possession need not post a guard to see that defendant does not dispossess himself of the .property while plaintiff hies to the courthouse to file his case. Since re-plevin is a possessory action, if defendant had not possession at time suit was filed, he may set up that as a defense, and if established plaintiff’s case fails. But if defendant does not raise that defense, but pleads his own right of possession and justifies his failure to deliver on grounds other than his own non-possession, the fact that defendant did not personally have physical possession of the property should not bar plaintiff’s suit. Unless non-possession at time suit was filed is pleaded as a defense, the question of defendant’s possession should be of no moment until time of trial and judgment, when judgment should be entered for return of the property, or for the value if return cannot be had. Kunz v. Nelson, supra. Defendant herein did not plead his non-possession as a defense, but defended his possession as rightful. Furthermore, he had possession when delivery was claimed before anwser made. I, therefore, concur in answering question (1) against defendant.
¶6*539 (2) The second question posed above is conclusively-answered by Mr. Justice Wade by pointing out that defends ant by answer denied plaintiff’s right of possession and claimed ownership and right to possession of the car in himself. It is therefore apparent that demand if made would have been unavailing. Watkins v. Jensen, 58 Utah 13, 197 P. 222.