| Vt. | Oct 9, 1911
Joseph Chapman, the father of this defendant,, let the plaintiff have a horse. The plaintiff claims, and his-evidence tended to show, that this transaction was an absolute gift of the animal, while the defendant claims, and his evidence-tended to show that the arrangement was subject to certain conditions regarding the use of the animal, which conditions-had been violated by the plaintiff, whereby he had forfeited all right to it. Soon after the horse was delivered to the plaintiff,, Joseph Chapman died and his widow succeeded to all his rights-
The only exception relied upon is to that part of the charge wherein the jury was instructed that, to defeat the action, the defendant must make out by a fair balance of evidence that “this gift or loan of the horse to the plaintiff was subject to those conditions, and that the plaintiff has violated those conditions. ”
The defendant now insists that this instruction required him to prove, not only that the transaction was a loan, but that it was a loan on conditions, and that the conditions were broken; whereas he would be entitled to hold the horse if the transaction was a loan and not a gift, regardless of conditions and breaches thereof. He also argues that the instruction was inconsistent with other instructions given and conflicted therewith. But these claims were not made below, and consequently will not be considered here. The only fault which the defendant found below with this instruction was that it put the burden of proof upon the defendant, when it should have been put upon the plaintiff. So this is the only point raised by the exception and the only one requiring consideration.
That the horse was, when seised, temporarily in the actual custody of another to whom the plaintiff had loaned it does not affect the rights of the parties here. The possession of the neighbor was the plaintiff’s -possession, and the situation thereby presented is just the same, so far as this litigation is concerned, as it would be had the horse been taken from the plaintiff himself. It sufficiently appears then, that the plaintiff was, at the time the defendant t.ook the horse, in possession of it claiming to be its owner. Possession alone is better than no title at all; it is presumed to be rightful and is some evidence of title, and is sufficient to support an action of replevin against a mere wrongdoer. It was said by this Court in Sprague v. Carr, 41 Vt. 6, that “a person who is in the possession, claiming the property or an interest in it or a legal right to the possession, may maintain replevin against any person taking the property from him who cannot show a better right to it. The defendant in the action.
The plaintiff in the case before us, by proof of his prior possession, established, prima facie, a right to maintain his action, .and the instruction excepted to was free from error.
Affirmed.