Opinion
No. 34872.
March 9, 1942.
1. CHATTEL MORTGAGES.
In replevin by trustee in chattel deed of trust for possession of horse covered thereby, after mortgagor's default, where defendant, who was not the mortgagor, claimed exclusive ownership, exclusion of evidence tending to show possession of the horse by the mortgagor was error.
2. CHATTEL MORTGAGES.
In replevin by trustee in chattel deed of trust for possession of horse covered thereby, after mortgagor's default, where defendant, who was not the mortgagor, claimed exclusive ownership, proof of mortgagor's possession of the horse was sufficient "prima facie evidence" of mortgagor's ownership to withstand a motion to exclude evidence showing mortgagor's possession.
3. CHATTEL MORTGAGES.
In replevin by trustee in chattel deed of trust for possession of horse covered thereby, after mortgagor's default, where defendant, who was not the mortgagor, claimed exclusive ownership, testimony on issue whether defendant by his knowledge of deed of trust and his availing of benefits thereunder by procuring and sharing advances made upon its security was estopped from asserting exclusive ownership of the horse was sufficiently strong to withstand motion to exclude evidence showing mortgagor's possession of the horse.
APPEAL from the circuit court of Jasper county, HON. EDGAR M. LANE, Judge.
J.M. Travis, of Meridian, for appellant.
The appellant undertook to prove by its witnesses that at the very time the deed of trust was given by John Walker that Walker had the actual possession of the horse in question, and that he thereafterwards had possession of the horse; that there was $16 advanced to John Walker to finish paying for the horse, and the trial court to the prejudice of the appellant refused to allow this testimony.
Replevin is purely a possessory action. One not the owner, but entitled to the immediate possession, may recover.
Scarbrough v. Lucas, 119 Miss. 128, 80 So. 521; Moore v. Cunningham, 124 Miss. 537, 87 So. 112.
It has generally been held that title to personal property passes by delivery, there being no requirement of law for a writing to convey title to personal property.
The possession of personal property is prima facie evidence of title in the possessor; and such title is presumed to be bona fide until the contrary is shown.
Roach v. Anderson, 28 Miss. 234.
It has most generally been held by the different states of the Union that the possession of personal property is prima facie evidence of ownership.
Vaughan v. Borland, 234 Ala. 414, 175 So. 367; Baurne v. State Bank of Orlando Trust Co. (Fla.), 135 So. 713; Sarasota County v. Weeks (Fla.), 130 So. 599; Corona Coal Co. v. Thomas, 212 Ala. 56, 101 So. 673; Birmingham So. R.R. Co. v. Goodwyn, 202 Ala. 509, 81 So. 339; 50 C.J. 786.
There seems to be no question about the materiality of the possession of personal property, because possession of some kind is necessary to pass title. Now in the present case we introduced the trust deed, signed by John Walker, conveying and warranting the title to P.C. Morrison as trustee for the benefit of Miss Grace Abney and then we undertook to introduce testimony and evidence that at the very time the deed of trust was executed, John Walker had the actual possession of the horse; that he thereafter had the continuous possession of the horse, and the court below refused the appellant this right. The admission of this testimony would have certainly made out a prima facie case, that would have carried this case to the jury; and it appears certain that this testimony was material and necessary for a case to have been made out, and the court below erred in refusing to admit this testimony, which we believe is fatal error in this case.
H.L. Finch, of Laurel, for appellee.
Counsel complains at length that possession is an indication of ownership, and that because John Walker happened to be riding the horse when the deed of trust was made that one act breathed life in the conveyance. We submit that it was no such possession as might be relied on by an encumbrancee as evidencing title or right to mortgage.
The appellee here had the possession of the horse even at the time it was being mortgaged; he had obtained his possession and title to same for such a time and his possession so notorious that Miss Abney herself when she drew her papers described it as the Walter Jones (appellee) horse.
Suit in replevin was brought by the trustee in a chattel deed of trust for possession of a horse covered thereby, default having occurred. Testimony for the plaintiff disclosed that one John Walker brought the horse to Miss Abney, who operated a mercantile store, with a request that she advance to him the sum of $16 to make final payment for the horse, and in order to secure such sum, together with other advances thereafter to be made executed a note in such amount and the deed of trust securing this and any further advances.
Upon default, the trustee brought this action. The testimony further shows that the appellee lived on the same farm with the mortgagor and knew of the transaction with Miss Abney and "traded on the deed of trust," procuring merchandise thereunder which was charged to Walker. It is also revealed that when Walker executed the deed of trust under which he warranted the title to the horse he was riding the animal, and at other times was seen riding the horse, which was also used on the farm. The trial court excluded evidence tending to show possession of the horse by Walker, and we think this was error. Possession is a relevant evidential factor in proof of ownership, and, indeed, is sufficient prima facie evidence thereof to withstand a motion to exclude plaintiff's evidence which shows such possession. International Harvester Co. v. Threlkeld, 226 Mo. App. 600, 44 S.W.2d 182; Mathew v. Mathew, 138 Cal. 334, 71 P. 344; Vaughan v. Borland, 234 Ala. 414, 175 So. 367, 111 A.L.R. 1370; Sarasota County v. Weeks, 100 Fla. 1064, 130 So. 599; 50 C.J. 786; 22 R.C.L. 79; 14 C.J.S., Chattel Mortgages, sec. 23, p. 619; Wigmore on Evidence, Sec. 2515. It is no answer to say that such prima facie case may be readily rebutted. Here there was no proof of ownership in appellee, since, at the close of the plaintiff's case, the trial court sustained defendant's motion to exclude.
Moreover, the testimony upon the issue whether defendant by his knowledge of the deed of trust and his availing of the benefits thereunder by procuring and sharing advances made upon its security was estopped to assert an exclusive ownership, is sufficiently strong to withstand the motion to exclude. Levy v. Gray, 56 Miss. 318; Richardson v. Toliver, 71 Miss. 966, 967, 16 So. 213. Cf. Sivley v. Williamson, 112 Miss. 276, 72 So. 1008; 14 C.J.S., Chattel Mortgages, Sec. 23, p. 615. There is no need to comment upon the other assignment of error.
Reversed and remanded.