Phillips v. McGrew

COLLIER, C. J. No question has been made at the bar as to the admissibility of the transcript from the records of the orphans’ court of Washington. It appears that after it was admitted as evidence, the plaintiff proved that the slaves in question were once the property of W. P. McGrew; and this was not denied by the defendants, or any testimony adduced by them to disprove it. If therefore the transcript should have been excluded, a question which need not be considered, its admission was rendered perfectly harmless, by evidence subsequently adduced and in effect admitted to be true. We pass then from this point in the case, to consider the questions arising upon the prayers for instruction to the jury, and the charge given. In response to the first prayer, the county court might with propriety have informed the jury that the legal title to the personal property of one dying intestate does not vest in his distributees, and that the latter can only regularly acquire it through an administrator. 11 Ala. Rep. 609. Such a charge should have been given, if the plaintiff rested his right to recover upon his interest as a distributee. The court did not merely refuse the instruction, but charged the jury that the plaintiff could maintain the action “ upon his possession derived as heir of his deceased brother, and as the bailee of his deceased brother.” In thus laying down the law, does not the court invade the province of the jury, and forestal their inquiries, by assuming as a postulate, that the plaintiff had the possession of the slaves; and that his possession is referable to his relationship to W. P. McGrew, and to a bailment by the latter, to him ? However convincing the evidence may be, it is not for the court to assert its truth; but it is the office of the judge to expound the law— the jury are to ascertain the facts. If the judge refer his duties to the jury, or undertake to perform theirs, in either case he commits an error. 2 Ala. Rep. 310. We think it cannot [258] admit of serious controversy, that the charge is obnoxious to the objection intimated. If the jury deferred their judgment as to the conclusions inferrable from the facts to the judge, they would have had little elso to do, than ascertain the respective value of the slaves, and assess the damages for their detention. They were told that the plaintiff had the possession, and it is intimated in no equivocal terms, that his possession was as next of bin and bailee of his deceased brother. These we have seen were conclusions dependent upon facts which the jury should have scanned. In Traylor v. Marshall, 11 Ala. Rep. 458, it was said the plaintiff in detinue must prove either a general or special property in the chattel, and a right to the immediate possession. A bailee may maintain detinue or trover against a stranger who takes the goods out of his possession ; and this whether the bailment be general or special, gratuitous or for a reward. So may a factor, or other consignee, pawnee or trustee. We said further, that in general, possession of a chattel is prima facie evidence of property in the possessor; but if the plaintiff has never had possession of the chattel, or if the contest be not with a mere stranger, but with one who will succeed in his proof of title, unless the plaintiff can prove a better, it is necessary for the latter to resort to strict evidence of title. If therefore the action be brought against a wrongdoer, the mere fact of possession by the plaintiff is usually sufficient evidence of title, although the plaintiff claim under a title which is defective; for the possession of property is prima fade evidence of ownership. These conclusions, it will be seen by a reference to the authorities on which the opinion of the court is rested, are well sustained. If, then, the slaves were in the plaintiff’s possession under an agency to hire or take care of them, commencing in the lifetime of W. P. McGrew; or even if he had been in possession of them from 1838 to 1845, as the proof indicates, and they were taken from him by one having no title, he would be entitled to maintain the present action. The relation of the defendants to W. P. McGrew did not authorize them to disturb the plaintiff’s possession, either by enticing or otherwise taking the slaves from him; and unless they show a superior legal right, they cannot justify their retention, although [259] they may have had no agency in inducing the slaves to leave the plaintiff. In respect to the question of a gift by W. P. McGrew to the defendant Levin, it may be quite enough to say that it wants one of the essential elements of a gift — delivery of the thing, or something which the law deems equivalent. The supposed donor does not appear to have parted with his dominion over the slave, but could have reclaimed her at any time up to his death. Taking all thé evidence, and giving to it an interpretation most favorable to the defendants, and it merely indicates an intention to give upon a contingency; But the purpose was never consummated — the locus penitentice was never closed, and no advantage can be claimed from it. 1 Smedes & M. Rep. 428; 3 Stewt. Rep. 121; 1 Stewt. & P. Rep. 56; 2 Port. Rep. 449; 1 Ala. Rep. 52; 2 Id. 117. An adherence to the views we have laid down, will enable the primary court to dispose of this case understandingly; and we have but to add, that the judgment is reversed, and the cause remanded.