Collins v. Bannister , 48 Mo. 435 ( 1871 )

Currier, Judge,

delivered tbe opinion of the court.

It is objected that the plaintiffs' do not show themselves to be the owners of the subject of the suit, to-wit: a leasehold formerly held by one Dennis Collins, who is shown to have died in 1862.' Alice Collins, one of the plaintiffs, is his widow; the other plaintiffs are his surviving children. The point is made that the leasehold was a mere personal chattel, and that it consequently passed to the administrator, and not to the heirs, upon Collins’ death. It is urged that a suit for the possession of the property, or for an injury to it, should have been brought by the administrator, and not by the present plaintiffs.

Dennis Collins died some seven years prior to the institution: of the suit. In the absence of evidence to. the contrary, it might not be unreasonable to infer from this lapse of time a settlement and distribution of the decedent’s estate. However that may. be, it is certain that the possession of a personal chattel is prima facie evidence of ownership. (1 Grreenl. Ev., 12th ed., § 34.) The plaintiffs here, according to an averment in the petition,, were in actual possession of the property at the time the trespass complained of was committed; and that averment is not controverted by the answer. The fact of possession is therefore-admitted by the pleadings, and the possession was evidence of ownership. The defendant’s instruction, founded upon the idea that there was no evidence of title, was consequently properly refused.

But there were two counts in the petition, one in trespass and one in ejectment. The lease, however, expired pending the suit, and there was no judgment for possession. The count in ejectment seems to have been overlooked or disregarded in the final disposition of the case. The trial was by the court, and the assessment of damages ($50) was general, without an apportionment of them to the respective counts. No objection to this was taken in the court below. The judgment was for the right party, was reasonable in amount, and will be affirmed.

The other judges concur.