Howe v. Farrar

Rice, J.

Trespass for taking certain property described in the writ. The defendant was, at the time of the alleged taking, sheriff of the county of Washington, and Charles Perkins was his deputy. The acts complained of were performed by Perkins. The defendant pleaded the general issue, with a brief statement, alleging that the property was taken as an officer, by virtue of a writ against one Samuel J. Poster. The case turned upon the question of title. To establish his title, the plaintiff introduced three mortgages from Samuel J. Poster to him, covering the property in controversy ; one dated June 26, 1850; one January 1, 1853; and one December 1,1855, with proof of their execution, &c.

In defence it was contended that these mortgages were fraudulent and void as to the creditors of Poster, and that the legal title to one of the horses, the mare called “ Jessie,” was not in Poster at the time she was mortgaged by him to the plaintiff. Among other evidence offered by the defendant to establish those points, was a mortgage from said Poster to one B. P. Brown, dated October 11, 1848, in which, there was evidence tending to show, the mare “ Jessie ” was included under the name of the “Whitney” mare. This mortgage was excluded by the court, and, as the defendant contends, erroneously.

It is contended, that the defendant cannot avail himself of the Brown mortgage, to justify his taking, by showing title in some party other than the plaintiff, unless he can connect himself with such outstanding title. This is undoubtedly true, if the object of the introduction of such evidence was to justify the taking of the property from the possession of the plaintiff. But the defendant denies that the possession was in the plaintiff at the time of the alleged taking.

Trespass lies for an injury to the possession. To maintain this form of action, the plaintiff must show that he has actual or constructive possession of the property sued for. The defendant is not put to his justification until the fact of possession is established by the plaintiff; which fact may be controverted by the defendant. Now it is not claimed that the plaintiff ever had actual possession of the mare “Jessie.” He had no personal knowledge of the animal — never saw her. He relies wholly upon constructive possession, arising by implication of law, from the alleged fact that the legal title was in him. Unless, therefore, he can establish his title, ho is loft without possession, either actual or constructive, and consequently without a basis for his action to rest upon, so far as this piece of property is concerned. To prove his title, he introduced a mortgage from Foster. The defendant replies that he obtained no title, and consequently no constructive possession, by virtue of that mortgage, for the reason that Foster had, before the execution thereof, divested himself of his title to the property, by mortgaging the same to Brown, and to show that fact, offered the Brown mortgage in evidence, which was excluded by the court. How the fact would have turned out, had the evidence offered been admitted, we cannot determine. Further investigation might have shown that the Brown mortgage had been paid, or in some way canceled or discharged, in which event the plaintiff’s title and his constructive possession would apparently have been established; or it might have turned out that the mortgage had been foreclosed, and that the title of Brown had become absolute. This would have wholly defeated the plaintiff’s right of action, in which event the defendant could not have been called upon by him, to justify his taking. The Brown mortgage was competent testimony, tending directly to establish this proposition, whether it was sufficient, or could have been made sufficient, with other testimony in the power of the defendant to introduce, we cannot determine. It certainly would constitute an important link in a chain of evidence having that legitimate tendency, and for that purpose should have been admitted.

An examination of the cases cited, and relied upon by the plaintiff, will show that the fact of possession in the plaintiff was either not controverted, or was established by the proofs.

The mortgage to G-ilpatrick, offered -by the defendant, dated December 22, 1855, was properly rejected. It could have no legal tendency to show fraud, or want of title in the plaintiff, being long after the date of his last mortgage relied upon.

There were many exceptions taken to the instructions of the presiding judge, and also to his refusal to give other instructions which were requested. But on examination, we do not find any errors in matters of law by which the rights of the defendant would have been prejudiced, or injuriously-affected. It is not, therefore, deemed necessary to examine those objections in detail. In consequence of the rejection of the evidence above referred to, a new trial must be had.

Exceptions sustained, and a new trial granted.