Bills v. Baker

Sewell, J.: It has been decided in many cases that in an action of trespass, trover or replevin a defendant cannot justify under the title of a stranger, without connecting himself with the right of said person. The reason is that possession is prima jade evidence of right, and conclusive against all the world, except the true owner, or one connecting his title with him. (Duncan v. Spear, 11 Wend. 54; Rogers v. Arnold, 12 id. 30; Brown v. Bowe, 35 Hun, 488; Stowell v. Otis, 71 N. Y. 36; Stonebridge v. Perkins, 141 id. 1.) This rule was not changed by section 1723 of the Code of Civil" Procedure. That section is not applicable to actions to recover a chattel brought before a justice of the peace. The proof in the present case did not warrant the court in finding that the defendant had any connection with or relation to the alleged title, possession or interest of Middleton or that he was acting under his orders. It is true that the evidence shows that after the requisition in the action for replevin had been dismissed, the attorney for the defendant therein said: “ We will go on and try the suit as if there had been no replevin; the sheep will be left where they are until after the suit is decided; then if it is decided they are Bills’ he can take them; if they are Middleton’s they will remain where they are or he can do what he pleases with them.” But this evidence, viewed in the light most favorable to the defendant, comes far short of being sufficient to connect the defendant with any right Middleton may have had in the property. It does not appear that the proposition was satisfactory to or was accepted by the plaintiff in that action, or that the trial proceeded or any other thing was doné in consequence of it. It does not appear that the plaintiff herein was present when the proposition was made or ever had knowledge of it, and it must be conceded that the attorney, as such, could not stipulate away or affect the right of the plaintiff in respect to the possession of the sheep or in any other [483] matter outside of the conduct of that action. So far as appears the defendant was a mere bailee of the constable, who was a wrongdoer and had no right to the possession of the property as against the plaintiff. The views expressed in regard to the case render it unnecessary to consider the exception taken by the defendant on the trial to the admission or rejection of evidence. The judgment is right and should be affirmed, with costs. All concurred; Kellogg, P. J., in result. Judgment affirmed, with costs.