Kennington v. Williams , 30 Ala. 361 ( 1857 )

STONE, J.

A plaintiff must recover on the strength of his own title, and not on the weakness of the defendant’s. — 1. Greenl. Ev., § 74. If he show no title himself, the defendant may rest his defense on a naked possession. When a party is found in possession of personal property, the law presumes the title to be in him, until it be shown that another has a better title. This better title may be established by proving a prior possession, which is not barred by adverse holding; or the claimant may trace his right to one who had such prior possession ; or, he may, in some other way, prove a paramount title in himself. The onus, however, is on him; and in the absence of all opposing proof, the right is presumed to be with the oldest possession, until by adverse holding for the period prescribed by statute, both the right and the remedy are barred. — See the authorities in Cow. & Hill’s notes to Phil. Ev. (3d ed.) part 1, pp. 457-8, 484-5; 1 Greenl. Ev. § 34; Doe, ex dem. Heydenfeldt v. Mitchell, 6 Ala. 70; Jones v. Jones, 18 Ala. 248.

In this record, there is no proof of any possession of the property in controversy, except that the defendant has had'the possession for about twenty-five years, and that he obtained that possession from his brother by purchasing the property. It is argued for the appellant, that the weight and effect of the evidence should have been left to the jury. The only circumstances in evidence, on which any reliance can be placed as tending to show title or possession in plaintiff’s donor, are, first, that witness knew the mother of the slaves, as far back as 1821. This was before defendant’s possession commenced. Knowledge of the slaves certainly cannot tend to prove title in any particular person. Second, the fact that Laomi Brown actually conveyed these identical slaves by deed, in 1824. Acts and assertions of ownership, by a party in possession of property, can certainly be given in evidence as explanatory of the possession. — McBride v. Thompson, 8 Ala. 650; Gary v. Terrill, 9 Ala. 206; Raiford v. Upson, 29 Ala.; Head v. Shaver, 9 Ala. 797; Abney v. Kingsland, 10 Ala. 355. We have yet to learn, however, that a party can prove possession in himself, by simply asserting the right to convey. Such doctrine, we think, would lead to most mischievous results. The bill of exceptions informs us, that it contains all the evidence. The plaintiff claims alone under the deed of Brown, and he offered no proof that Brown ever had either the right or the possession of the property. There was, then, no evidence on this point for the jury to pass on.

The judgment of the circuit court is affirmed.

Rice, C. J., not sitting.