Hinman v. Sabin, No. 26532.

No. 26532. | Miss. | May 30, 1927

^* Corpus Juris-Cyc. References: Evidence, 22CJ, p. 84, n. 71; p. 85, n. 72; Marriage, 38CJ, p. 1321, n. 53; Replevin, 34Cyc, p. 1501, n. 11; p. 1503, n. 28; Presumption must be based on evidentiary facts and not on another presumption, see 10 R.C.L. 870; 2 R.C.L. Supp. 1094; 5 R.C.L. Supp. 568; 6 R.C.L. Supp. 624; On right to immediate possession as test of right to bring action in replevin, see 23 R.C.L. 866; 4 R.C.L. Supp. 1509; 6 R.C.L. Supp. 1378. This is an appeal from a judgment based on a peremptory instruction for the defendant, Mrs. J.E. Sabin. The action was on a writ of replevin, and the affidavit stated that a certain deed of trust was executed by J.E. Sabin, on the 22d day of April, 1925, for the benefit of John W. Dickins, in which the plaintiff, appellant here, was named as trustee; that one Nash automobile, Model 691, valued at six hundred fifty dollars, the property of the affiant, was wrongfully detained by Mrs. J.E. Sabin, in Leflore county, in the state of Mississippi. The writ of replevin was issued, and the sheriff made the following return thereon:

"I have this day executed the within writ, personally, by delivering to Mrs. J.E. Sabin a true copy of this writ, and by levying upon, and taking into my possession the within named and described automobile. Further executed by releasing the said automobile on a bond for one thousand dollars previously executed; said bond now being in possession of G.S. Pate, circuit clerk."

The plaintiff or appellant introduced the deed of trust and notes in evidence, and sought to prove the value of the automobile by a witness, who failed to testify as to its value, but did testify that a used automobile of the make of the one involved had a trade-in value with the company for a new car, of from five hundred dollars to six hundred dollars. Apart from this statement, there was no testimony as to the condition and value of the automobile. The plaintiff then rested his case, and motion was made to exclude his evidence and grant a peremptory instruction for the defendant. Thereupon plaintiff made a motion to reopen his case, which was allowed; and he offered in evidence the bond and writ of replevin with the officer's return thereon, and again rested, when motion was renewed by the defendant to exclude the evidence, and a peremptory instruction was granted by the court to the defendant.

It is contended by the appellant, or plaintiff, that the ruling of the court was error, because the law would presume that Mrs. J.E. Sabin was the wife of J.E. Sabin, would presume that they were living together as husband and wife, and would presume that the property was upon the premises and belonged to the husband rather than to the wife. There was no proof to show that the husband was the owner of the automobile at the time he gave the deed of trust. Under the laws of this state, the wife is emancipated from all the disabilities of marriage, and is entitled to hold property to the same extent as a man, or in this case as her husband would. The general rule is that the court will not draw one presumption from another presumption. We do not think the law would presume that because the woman is described in the pleading as Mrs. J.E. Sabin, it would necessarily mean that she was the wife of a man of the same initials. There ought to be some proof of the marriage relation, either direct or circumstantial, from which the court could find as a fact that the woman was the wife of the man.

We think, further, that the allegations of the detention of the automobile by the defendant, Mrs. J.E. Sabin, carries the idea that the automobile was in her possession; and possession, in the absence of other proof, would carry the presumption of ownership. Consequently, we could not presume that the husband had title to the automobile. That fact, if it be a fact, should have been proved by competent testimony.

We further think that it devolved upon the plaintiff to prove the value of the car. This is a suit in replevin, and the defendant under the forthcoming bond would have the option of either paying the value of the car as found by the jury or the court or restoring the car to the plaintiff in replevin. If the sheriff had placed a specific value upon the automobile in his return, the value would have been proved by such return in the absence of other evidence. There is nothing to show that the sheriff valued the automobile; but the return shows that the bond was made out for him prior to the seizure, and that he accepted and returned the bond, which was not in the sum of twice the value of the property, as alleged in the affidavit. Consequently the return does not show a valuation by the sheriff. The plaintiff assumes the burden of the proof, and therefore must meet it; and, if he fails, the court may rightfully direct a verdict for the defendant.

The judgment of the court below is affirmed.

Affirmed.