73 Ala. 215 | Ala. | 1882
— While the general rule prevails, that no plaintiff can maintain an action of detinue, unless he possesses, at the commencement of the action, a general or special property in the chattels sought to be recovered, it is not of universal application. The rule is otherwise, where a mere wrongdoer is concerned. He is not permitted to question the title o'f one who is in the actual possession and custody of the goods, whose possession he has wrongfully invaded as a trespasser. Hence, the rule obtains, that “the naked possession of goods, with claim of right, is sufficient evidence of title against one who shows no better right.” — 2 Greel Ev. § 637; Gafford v. Stearns, 51 Ala. 434, 442; Miller v. Jones, 26 Ala. 247; Folmar v. Copeland, 57 Ala. 588.
The evidence shows that the plaintiff, Huey, had been in possession of the mule in contention for ten or twelve months, claiming it bona fide as his own. The defendant had- gone on plaintiff’s premises, and taken the mule away during plaintiff’s absence, and without his consent. This lie had no lawful right to do, possessing, as the testimony shows, no title to, or property in the mule, upon the strength of which he could have maintained an action for it. The animal belonged to the estate of one Porter, deceased, and the legal title would repose in his personal representative, the distributees of the estate having only an equitable interest in it.- — Kelly v. Kelly, 9 Ala. 908; Vanderveer v. Alston, 16 Ala. 494.
The defendant, as we have said, shows no title authorizing the unlawful seizure made by him. The mule was not the property of Whitehead, from whom he undertook to purchase it, the evidence failing to show any delivery to him (Whitehead) by his immediate donor, from whom he claimed title by gift. The gift could not be effectual without a delivery, even if the donor himself had title, which the evidence fails to show.
At the'time of defendant’s alleged purchase, moreover, the property was in plaintiff’s possession, being adversely held by him under bona fide claim of title, and the bill of sale would have transferred to the vendee nothing but a mere chose in action,, even if the vendor had held the legal title. — 1 Brick. Dig. 52, § 44.
There was no error in the charge of the court, given at the request of the plaintiff, that if the jury believed the evidence they must find for the plaintiff.
Affirmed.