6 Or. 122 | Or. | 1876
It is admitted that respondent was entitled to judgment for costs and disbursements of the action; but it is claimed that that part of the judgment which requires the plaintiff to return the mare to defendant is erroneous. This claim of error is based upon the ground that respondent in his answer disclaims either the ownership or possession of the mare in dispute; and upon the further fact that respondent alleges that Anietia Boggs, the daughter of the respondent, is the owner of and was in possession of said property at the commencement of the action.
If appellant intended to rely upon the admissions in the answer of respondent for recovery, he should have asked for judgment thereon instead of denying such admissions in his replication. All the issues of fact made by the pleadings having been submitted to the jury, the presumption is in favor of the correctness of the verdict, and that is in accordance with the evidence produced at the trial. At any rate it appears that the jury found that appellant was not the owner of the mare, nor entitled to the possession of the same; and it is sufficient for a defendant in that class of actions that the right of property is not in the plaintiff.
In the case of Edwards v. Talcott, 1 Gilman, 365, which 'is a case like this, the court say: In this action the defendant may plead in bar, property in himself or in a stranger, and if he succeed on the trial, he will be entitled to a return of the property. It is not necessary that he should connect himself with the title of the stranger. It is sufficient for him that the right of property is not in the plaintiff. The plaintiff must recover on the strength of his own title.
The judgment of the circuit court is affirmed.
