Westbay v. G. D. Milligan & Son , 89 Mo. App. 294 ( 1901 )

BOND, J.

To recover in replevin the plaintiff, in an action involving the issue of title, must be able to show title, general or special, to the property and a right to its immediate and exclusive possession in, himself. In the absence of all evidence as to title in either party, possession of the property by one of them affords a prima facie presumption of title in him which disappears when the evidence on that issue supervenes. Springfield Grocer Co. v. Shackleford, 56 Mo. App. 642. In the case at bar, the testimony of plaintiff’s witness, J. S. Bender, is that plaintiff denied that he (plaintiff) had possession of the goods notwithstanding which the officer, who was armed with a writ authorizing their seizure, found the goods concealed in the cellar of plaintiff’s residence. Plaintiff did not, on the present trial, introduce any evidence disproving this statement of his own witness. Unless plaintiff’s statement, so testified to, was untruthful, he did not even have possession of the goods and could not invoke any presumption which might arise from possession. But, conceding for the argument only, that plaintiff was in possession of the hidden goods in his cellar and of the others stored in different localities in the town, how could that avail him anything in view of the evidence introduced by himself that the title and ownership of the goods in dispute was in A. V. Darroch, with whom no privity of title or possession was shown on the part of the plaintiff under the present record ? Plaintiff can, of course, only recover in this action upon the strength of his own title, since that became the issue in this case under the pleadings and the evidence. Upham and Gordon v. Allen, 16 Mo. App. 206. Had he introduced evidence, on this trial, connecting himself with the title of Darroch, he would have been in a proper position to demand a submission of the issue to the jury, since Darroch’s title, if any, emanated from the same source from which the defendants herein claimed their title, namely, A. W. Brown, the general owner of the goods. These deficiencies in the proof adduced on the present trial were fatal to the sustension of plaintiff’s right to recover, and, therefore, relieve us from the necessity of passing upon the validity of the title set up by defendants to the goods taken from their possession in this action. The result is that the judgment is affirmed.

All concur.