34 Ill. 170 | Ill. | 1864
delivered the opinion of the Court:
It is insisted that the third instruction given for defendant below is erroneous. It asserts that possession of personal property is prima fade evidence of ownership, and if defendant had possession for about one year prior to the sale, then, in order to overthrow such prima fade case, it was incumbent on plaintiffs to prove that the title to the horse was not in the defendant, but in the United States governmeut. As a general proposition, possession of chattels creates a presumption of ownership, slight it may be, but sufficient until overcome by proof. Tet the prima fade case may be rebutted by the circumstances attending the possession. It may be rebutted by evidence either circumstantial or positive, but until rebutted it is evidence of ownership.
If defendant in error was in possession as owner, then it raised the presumption of ownership, which plaintiffs in error were bound to rebut by showing that the ownership was in some other person, unless the circumstances rebutted the presumption. The evidence shows that the animal was marked with the government brand indicating that it was the owner. The anny regulations require that all such property, as soon as acquired by the government, shall be so marked, which is for the obvious purpose of identifying it as property belonging to the general government. If this brand of the government was found upon this animal, that fact would, unexplained, overcome the presumption of ownership created by mere possession, hut long and uninterrupted possession or other circumstances may overcome the presumption of ownership in the government, but will not bar its right to recover the property. The regulations also provide that when property for any reason is no longer needed by the government, or has become unfit for use, it is condemned and sold by the proper officer. And proof of such sale would overcome the presumption of ownership by the government. That proof may be made by any legitimate evidence establishing such sales.
By the regulations of the service, when property is condemned it is required to he branded with the letter “ 0.,” which, if shown, is evidence that the government has parted with the title, when found in the possession of an individual. This presumption, it is true, may be rebutted by evidence. But in this case the government brand indicating that it was the owner, being found upon the animal, was evidence Which rebutted the presumption of ownership created by possession of the property. And with this evidence of ownership in the government, possession for a year would not overcome the presumption that the government Avas still the owner. The evidence to overcome the presumption created by possession was present, and went with the- possession during its continuance. Possession creates no bar by limitation against the government, and even if it-could, one year is not sufficient.
This instruction as given Avas calculated to mislead, and we think did mislead the jury. It should have been refused, or so modified as to have informed them that the government brand indicating ownership overcame the presumption created by possession. As the case will be passed upon by another jury, we deem it improper to discuss the weight of evidence in the case. The judgment is reversed and the cause remanded.
Judgment reversed.