Summary
In Jones v. Jones, 162 Miss. 501, 139 So. 873, it was held that the defendant, who claimed the property in question as a gift from the plaintiff, had the burden of proving that affirmative defense.
Summary of this case from Greer v. HamptonOpinion
No. 29849.
March 7, 1932.
1. REPLEVIN. That defendant, after giving bond for replevied property, surrendered part of property, and that officer accepted it, did not preclude defendant from asserting right to its possession.
That officer making levy accepted replevied property surrendered by defendant after she had given bond therefor did not preclude her from asserting right to its possession, for defendant need not have given bond at all, in which event property would have remained in officer's possession, unless bond had been given by plaintiff.
2. GIFTS.
Defendant had burden of proving affirmative defense that replevied property was gift from plaintiff.
3. GIFTS. Testimony by defendant that replevied property was given to her by plaintiff held insufficient to show gift.
Evidence in question was simply that plaintiff gave the property to defendant, but by what words or acts plaintiff manifested an intention to make gift did not appear.
4. GIFTS.
To prove gift it must appear that donor intended to make gift, and also that he consummated it by actual, constructive, or symbolical delivery to donee.
APPEAL from circuit court of Calhoun county. HON. T.E. PEGRAM, Judge.
J.H. Ford, of Houston, for appellant.
Appellant was entitled to judgment not only that he retain the possession thereof but also for damages for its wrongful detention during the time appellee wrongfully withheld from him the possesion thereof.
Section 3098, Code 1930; Cook v. Waldrop, 133 So. 894; Thornton v. Gardner, 134 Miss. 485, 99 So. 131.
Appellant was entitled to recover at least nominal damages.
54 C.J. 614.
Since appellee voluntarily turned the two cows and calves over to him about two months after she made bond for them, when they became a burden to her, she was estopped to claim them on the trial of the cause.
When one voluntarily surrenders property to another believing, although erroneously, that the latter is entitled to it, he cannot maintain replevin therefor.
54 C.J. 447.
Appellee is estopped to set up in herself the defense of ownership.
54 C.J. 460.
Gifts inter vivos are not valid unless accompanied by delivery of possession.
28 C.J. 630-632, sec. 21; 12 R.C.L. 932, para. 10; Meyer v. Meyer, 106 Miss. 638, 64 So. 420; Woods v. Sturges, 116 Miss. 412, 77 So. 186.
Neither intention, nor mere words alone suffice, without delivery.
28 C.J. 633; Meyer v. Meyer, 106 Miss. 638, 64 So. 420.
In actions of replevin, "defendant has the burden of proving affirmative defenses."
54 C.J. 537; Stewart v. Graham, 93 Miss. 251, 46 So. 245.
The defense of gift is an affirmative one and the burden is on the defendant to show it.
Stewart v. Graham, 93 Miss. 251, 46 So. 245.
A gift inter vivos must be strictly alleged and proved, and particularly delivery by the donor with intent to vest title in the donee.
54 C.J. 668, sec. 70.
The burden of proof is on one claiming to be the donee of property to establish all facts essential to the validity of such gift.
54 C.J. 669-670; 12 R.C.L. 971, par. 44.
In the case of an alleged gift from husband to wife, there must be clear and convincing evidence of a delivery of the property by the husband with the intention of divesting himself of all dominion and control of it and of vesting it in the wife.
12 R.C.L. 973, para. 45.
C.A. Bratton, of Pontotoc, for appellee.
Appellee is not estopped to prosecute her suit as at the time she surrendered this property to the bailiff it was done with the distinct understanding that it would not effect her claim to the property.
The jury was told that to complete the gift there must be a delivery of the personal property. This answers the question raised by appellant as to the gifts inter-vivos.
The parties hereto are husband and wife, who disagreed and separated. The husband sued out a writ of replevin against the appellee, his wife, by which he seeks to recover the possession of several head of live stock and a lot of household furniture, including a sewing machine, an organ, and a cooking stove. The appellee gave bond for the property, and it was left in her possession. Afterwards she surrendered most of it to the officer who made the levy, and he delivered it to the appellant.
When the case came on for trial, counsel for the parties seemed to understand — though the record does not disclose for what reason — that the appellee only intended to claim, of the property sued for, two cows and their calves, the sewing machine, the organ, and a cooking stove. The right to the possession by the appellant of the other property included in the writ is not clear from the evidence, but the case seems to have proceeded on the theory that he was entitled thereto.
The jury found for the appellee for the two cows and their calves, the sewing machine, and the organ, and a judgment awarding her the possession thereof was rendered. Neither the verdict nor judgment refers to the other property sued for. As hereinbefore stated, the appellee after giving bond for all the property returned some, but not all of it, to the officer who made the levy. The appellant offered, but was not permitted, to prove the rental value of a mule and a horse included in the live stock sued for; the evidence was excluded on the ground that it was speculative. We presume that by this was meant that the appellant did not sufficiently show that he knew what the rental value was. The evidence was sufficient, and should have been admitted, its value being for the jury.
One of the appellant's contentions is that appellee, by the surrender of the property after she had given bond therefor, waived any further right to possession thereto. This contention is without merit. The appellee need not have given bond at all, in which event the property would have remained in the possession of the officer making the levy, unless a bond therefor had been given by the appellant. We are not called on to decide whether the appellee had the right to surrender the property to the officer after bonding it, but his accepting it does not preclude her from asserting the right to the possession thereof.
The property awarded the appellee was admittedly purchased by the appellant, and the appellee's claim thereto is that it was given to her by him. This being an affirmative defense, the burden of proving it was on the appellee. The evidence introduced by her in support of this claim is simply that when the appellant bought the property he gave it to her, and was as follows:
"Q. When he bought that cow there tell the jury whom he gave it to? Objected to. Objection overruled. Counsel except. A. He gave it me."
Another similar question and answer covers the other cow and calf.
"Q. About the Singer sewing machine, tell the jury about that? A. He bought it for me, — he said he did.
"Q. Did he give it to you? A. Yes, sir.
"Q. What about the organ? A. He bought it and turned it over to me. He said he bought it for me and Myrtle, my daughter."
The appellee also testified that the cows and sewing machine "were used for general family use."
Leaving out of view the character of questions by which this evidence was obtained, it is insufficient to show a gift from the appellant to the appellee. In order for a gift to be proved, it must not only appear that the donor intended to make the gift, but consummated it by an actual, constructive, or symbolical delivery of the property to the donee. The "mere declarations of the owner that he has made the gift, unaccompanied by acts showing the delivery of possession, or an absolute parting with all dominion and interest, are not sufficient to render the gift valid." Wheatley v. Abbott, 32 Miss. 343. "The rule as to delivery is not strictly applied to transactions between members of a family living in the same house, the law in such cases accepting as a delivery acts which would not be so regarded if the transactions were between strangers living in different places. It is not required that the thing given should be removed from their common residence. It is sufficient, if it clearly appears that the donor has relinquished, and the donee has acquired, all dominion over and control of the property, but even in such cases there must be something to show that the gift was completed." 28 C.J. 638; Carradine v. Collins, 7 Smedes M. 428; Young v. Young, 25 Miss. 38; Wheatley v. Abbott, 32 Miss. 343.
The evidence here is simply that the appellant gave the property to the appellee: but by what words or acts he manifested an intention to make the gift does not appear. Assuming, as counsel do, that the appellant proved that he was entitled to the possession of the property for which the appellee gave bond and did not afterwards return to the officer, he was entitled to a verdict and judgment therefor.
Reversed and remanded.