| Ala. | Jan 15, 1859
“Proof of actual possession by the plaintiff) at the time of the trespass, will, in all cases, suffice to maintain this action (of trespass) against a mere wrongdoer, not being the real owner of the chattel.” — 2 Saunders on Pl. & Ev. 861; Graham v. Peat, 1 East, 244; 2 Saunders’ R. 47 ; Squire v. Hollenbeck, 9 Pick. 561.
The plaintiff was in possession of the property, the asportation of which affords the material ground of complaint in this case. If the defendants had no title, they were mere wrongdoers; and the possession is, of itself, without a title in the plaintiff) sufficient ground for the maintenance of the action. It is, therefore, a material and relevant inquiry in this case, whether the defendants, or one of them upon whose authority the others acted, had title to the property. It was competent to show that they, or one of them under whom the others acted, had title; and it was, on the other hand, competent for the
The will of Watson, the will of Mrs. Tarry, and the testimony of Garrott, all tended to show title to the property in the defendant Brown, as the executor of the last will and testament of Mrs. Tarry, and were, therefore, properly admitted in evidence. The objection to Gar-rott’s testimony was general, and there,was no error in overruling it, although some portions of it may have been inadmissible. We, therefore, abstain from pronouncing upon the legality of the different parts of it. It affords proof of declarations and conduct on the part of the plaintiff, conducing to show an admission and recognition by him of title in the testatrix of defendant Brown, and was certainly, thus far, admissible.
The entire evidence -offered by the plaintiff, and rejected by the court, tended to show a want of title in the defendant, as the executor of Mrs. Tarry’s will. It was therefore admissible, and the court erred in rejecting it. Before the offer of evidence which was rejected by the court, it had been proved, that a part of the slaves in controversy, and the maternal ancestor of the rest, were in the possession of one Palmer, a former husband of Mrs. Tarry, from 1826 to his death, in 1886. This evidence conduced to show that the title was in Palmer at his death. It was competent for the plaintiff to show that the title had remained in, and had never passed from, the representative of Palmer’s estate; because, in so doing, he would prove that neither of the defendants was the owner of the property, and that he was entitled to maintain his action against them, as wrongdoers, upon his mere possession. The evidence which the court rejected would have tended to show, that the property had never been in any wise administered upon, and thus contributed to support the argument that the title remained in the estate of Palmer. The evidence of the marriage of Mrs. Tarry with the administrator of Palmer’s estate contributed to the' establishment of a connection of her possession,
The nonsuit is set aside, the judgment of the court below reversed, and the cause remanded.