Patterson v. Kicker

SOMEBY1LLE, J. The legal principle is one of common learning, that possession of personal property is prima facie evidence of title, or ownership.—2 Whart. Ev. § 1331; Sparks v. Rawls, 17 Ala. 211; 1 Brick. Dig. 806, § 37. There is no-reason why the title of the wife, to property owned by her, can not be proved in the same manner, as that owned by one sui juris. It is well settled, that the possession by the husband, of property belonging to the wife’s statutory separate estate, is referable to his representative capacity as trustee. The fact of a joint possession, therefore, can not complicate the principle-in the simplicity of its application.—Brunson and Wife v. Brooks, 68 Ala. 248; Gwynn v. Hamilton, 29 Ala. 233. It was no doubt competent for the plaintiff to prove, by oral evidence, her ownership of the mule for the recovery of which the present action was brought. The possession of the property by herself, or by her husband in recognition of her title, or by both jointly claiming it as her property, would be presumptive [408] evidence of such ownership. “ All property of the wife,” the statute provides, “held by her previous to the marriage, or which she may become entitled to after the marriage, in am/ manner, is the separate estate of the wife.” — Code, 1876, § 2705; Const., 1875, Art. x, § 6. All property held under the provisions of this statute, is the statutory separate estate of the wife; and to take a given case out of its influence, words are required clearly indicating an intent to exclude the marital rights of the husband.—Short v. Battle, 52 Ala. 456; Smith v. McGuire, 67 Ala. 34. In view of the fact that the ¡present system, creating separate estates in married women, has now been in force in this State for over a third of a century, it is safe to assert that all property owned by married women may be presumptively considered as held by them under the statute of the State, until the contrary is shown. The statute is broad and comprehensive, and may be taken as the general rule of property tenure. The exception to the rule is found in the other class of separate estates called equitable, and which are created by contract. This, it is needless to say, is a rule of evidence, and not of pleading. Under the influence oflthese principles, it was competent for the plaintiff, as above stated, to prove her possession of the property in question, as prima facie evidence of her title ; and such title would presumptively be the ownership of a statutory separate estate, liable, of course, to be rebutted by countervailing evidence. But, if the plaintiff insisted on going further, by proving title by written conveyance, such writing should have been proved according to the established principles of evidence, which required its production, or else the proof of its loss or destruction, in order to let in secondary evidence of its contents. The familiar case cited in all the books is the fact of tenancy, which may be proved orally by the payment of rent, although there be a written contract between the landlord and tenant; yet the contract itself must be produced, if it is sought to prove the tenancy through medium of it, or to establish the terms of the instrument. — 1 G-reenl. Ev. § 87; 1 Whart. Ev. §§ 77-78; Powell’s Ev. (4th ed). 63; Roscoe’s Or. Ev. (7th ed.) pp. 6-7, notes (1) and (2). There is no error in the rulings of the court on the evidence, and the judgment is affirmed.