Potter v. Washburn

The opinion of the court was delivered by Redfield, J. The apparent importance of this cause to the parties, and.the extent of erudition, as well as of minute criticism, which the discussion at the bar has put in requisi [564] tion, might, perhaps, have justified a more extended opinion. But the very great number of cases which it becomes necessary, under the present law, to report, makes it indispensable to study brevity. We think the change of possession was sufficient. Where property, at the time of the sale, is in the actual custody of some bailee or depositary for the vendor, all that is ever-required, in order to perfect the sale,as against creditors, is that the depositary shall be . notified of the transfer, and consent to keep the property for the vendee. Cases might, perhaps, occur where less would suffice. In regard to the evidence offered to show that the defendant, since the trespass committed, had obtained a release from the real owner of the property, it is not necessary to decide. The evidence falls short of showing that fact. There is no evidence that the estate of John Holbrook possessed any interest in the land, on which the posts were cut, except what results from a deed recorded, without possession, and no evidence of the title of the grantor. This has never been recognized, in this state, as giving to the grantee any interest in the land. It is very certain when one attempts to derive title to land through the heirs of a former proprietor, the fact of heir-ship must be proved. This cannot be done, by a recital, merely, in the deed, especially where the deed is of recent date, which, at most, amounts to a mere claim of heir-ship. It is always true, that the possessor of personal property may maintain trespass against a mere wrongdoer, without showing the extent of his right. Possession is, of itself, sufficient title against all the world, except the true owner. In regard to the interest of the witness, White, it is not necessary to decide. Piad his testimony been received, it could at most have only reduced the damages to the extent of his own interest, and, by releasing those damages, the plaintiff has wholly obviated the exception. The exception to the form in which the case is drawn up is too refined for practical application. It seems to have resulted from the fact that the counsel drew up the case, by detailing all the testimony ; that in the charge to the jury the word “ facts ” is used instead of “ testimony ; ” but not [565] in such a manner as, by any possibility, to mislead the jury. The jury should have been told if they believed all the testimony detailed; but where there is no conflict in the testimony, 'the expression, “ the facts detailed ” seems to be of much the same import. If the jury believed all the “ facts detailed,” it must be all “ facts detailed ” in the testimony. And how could they do this, and not believe the testimony, is past our comprehension. It is no doubt true; that critical accuracy would give a preference to the use of the term “ testimony ” instead of “ facts,” but so correct a writer as Mr. Starkie, in numerous instances, uses the terms as synonymous and convertible. We should not have deemed this exception deserving so much as a remark, en passant, had it not been for the apparent self-delusion which the counsel seem to have brought upon themselves in regard to the matter. For if the “ facts detailed ” constituted a sufficient change of possession, as the jury were instructed, and as we now decide, it could not surely be necessary to inform the jury, in any other manner, what constituted a sufficient change of possession. We are glad that the counsel have brought this matter to the notice of the court, because it is important that cases should be stated with precision, and with some degree of critical accuracy ; and we like that the bar should feel perfect freedom in their remarks and strictures, upon cases, drawn up even in the haste of a nisi prius term. In the language of one of the most refined and elegant of the historians of the Roman Empire, rara temporum felicitate, ubi sentiré, quee velis, el, qua .sentías, dicere licet. Judgment affirmed.