Winlack v. Geist ( 1884 )

Mr. Justice Greek

delivered the opinion of the court, October 27,1884.

We are not able to say there was any error in the instructions given to the jury on the subject of the plaintiff’s title. The only complaint that is made relates rather to the title of the plaintiffs’ vendor than to that of the plaintiffs, except in its derivative character. The action is trover, and the plea was “ not guilty,” which of course required the plaintiffs to prove their title. This they did by showing purchase from another who had and delivered possession of the property, a timber raft, to the plaintiffs.

It appeared by the testimony that a portion of the timber was cut upon lands belonging to persons other than the vendor, and the defendant complains that the court permitted a recovery without requiring the plaintiffs to prove affirmatively, not only the title of the plaintiffs by purchase from their vendor, but also the full title of the vendor. It was proved that the vendor of the plaintiffs had cut and delivered the timber; there was no evidence showing that the persons upon whose lands the timber was cut, made any objection to the cutting, or any claim to the timber after it was cut, and the question was, what was the presumption in the absence of evidence. The learned judge of the court below said that the presumption was that the cutting was rightfully done and not wrongfully. We'do.not think this was error. It did not at all conflict with the right of the'defendant to show title in another than the plaintiffs. But he did not choose, or did not attempt, to do this, and hence there was nothing in the case on this branch of the subject, except the presumptions that were applicable.

Of course there could not be a presumption of trespass, of wrong-doing. On the contrary, the mere fact of cutting without objection or adverse claim by the owners of the land, after several years had elapsed, was some evidence in addition to the natural presumption that persons act rightfully rather than wrongfully, in support of the vendor’s title. If such a presumption may not be made in such circumstances, it would follow that there could be no recovery, which means practically that a presumption of wrong-doing must be made, and thus what might be a perfectly good title, against all the world, be lost in favor of one who had no pretence of title. The plaintiffs proved a perfect prima facie title by showing a purchase and payment for personal property from the person in possession of it. In all ordinary cases this is sufficient, because, .as a rule the possession of personal property is evidence of its ownership. We think this is all that is required in actions of trover, unless the plaintiffs’ title is directly challenged by the defence. We find the rule thus stated in 2 Troub. & Haly’s Practice, § 1563: “ So possession with assertion of title, or even possession alone, such, for instance, as the finder of a chattel has, gives the possessor such a property as will enable him to maintain this action against a wrong-doer, for possession is prima facie evidence of property; but as the action is founded on property, and not merely on possession, it is still competent for the defendant to show a paramount title in a third person.” Undoubtedly in any ordinary case of trover, where the subject of the action is a specific chattel, if the plaintiff proves that he bought and paid for it from one having it in possession, he has made out a prima facie case and one upon which he can recover, unless there is evidence impeaching his title. Perhaps the presumption is not quite so strong where the property consists of timber cut from land owned by another than the plaintiff’s vendor. But we can not say there must be, in such a case, a presumption that the cutting was done without right. On the contrary, we think with the learned court below, that when a man does an act, the presumption, in the absence of evidence otherwise is, that he 'acted rightfully and not wrongfully. This does the defendant no-harm. He is perfectly at liberty to disprove the presumption, and show by any sufficient testimony that it does not apply in the given case. Nor do we see any error in the answer to the defendants’ fourth point. It is only the impossibility of'distinguishing goods intermixed with others, that transfers the title to the whole, to the one who is innocent of the intermixture. But if they may be distinguished, the transfer of title does not take place, and of course whoever asserts such a title must prove it. The court said nothing more than this.

Judgment affirmed.