Parsons v. Overmire

Caton, C. J. If the testimony of Webster is to be relied upon, then there is no avoiding the conclusion that both the mare and harness in controversy, were pledged by Shinn to Parsons, to secure a debt which the former owed the latter, and that the possession of the articles was delivered by the pledgor to the pledgee, and retained by him, till they were wrongfully taken from him by Gore. This possession is most seriously questioned in the argument for the defendant in error, and requires to be particularly noticed. Both Shinn and Parsons had rented a farm together, which they worked jointly. Shinn owned the mare and harness in question, and Parsons a horse, which they worked together as forming one team in the joint cultivation of the farm. In this condition of affairs the pledge was made, after which, both the mare and harness were claimed by Parsons as his property in the presence of Shinn, who made no question or denial of such claim. Indeed the witness swears, that Parsons always claimed the property as his own and used it as such. Sometimes one drove the team in the prosecution of the work on the farm, and sometimes the other. While affairs were in this position, the witness, Parsons and Shinn, went in a wagon with this team to a public sale, Parsons driving. At the sale, Shinn committed a homicide, for which he was arrested, when he told Parsons to take the mare home and take care of her; that he would be back in a few days. This is the last we hear of Shinn in connection with this property. There is no evidence in the record, even that the defendant below claimed the property, under a purchase from Shinn, though it is probable that it was so understood at the trial. The facts above stated, show a transfer of the possession of the property pledged, as much as it was possible to do under the circumstances of the case. Shinn ceased to claim the ownership of the property, which was openly and notoriously claimed by Parsons, who ever after in conjunction with such, claim, treated it as his own. If he had not the possession of the mare and harness, then by the same rule, he had not the possession of his horse either. He had the same possession and control of the one as he had of the other. What other transfer of possession was it possible there could be, situated as the parties were, without absolutely breaking up their farming arrangements ? Shall we hold that it was impossible for one of these parties to sell and transfer property used in the joint cultivation of this farm to the other, without taking it off the farm altogether; or the seller abandoning the place and going away. Indeed, even this was done in the case before us, before there was any pretense of a claim of right to the property asserted by the defendant below, as derived from Shinn; if we admit that there was such derivation of right. Shinn was gone; arrested under a criminal charge, and so far as we know, has never been on the place since. Parsons returned with the property, and continued to claim and use it as his own, and was in the actual possession and use of it when it was violently taken from him by Gore, and he was driven to this action to regain the possession of it. Considerable stress is placed in the argument for the defendant below, upon the fact that Shinn at the time of his arrest, told Parsons to take the property and take care of it, and that he would be home in a few days. This it is claimed was an assertion of ownership by Shinn, inconsistent with the claim and possession of Parsons, and not disputed by him. We do not think so. Shinn had a residuary interest in the property, which under the circumstances, justified him in expressing solicitude about it, and enables us to understand the remark, as it was undoubtedly understood by Parsons, as not in the least inconsistent with the claim and possession of the latter. What has been already said sufficiently disposes of the questions arising on the instructions. The judgment is reversed and the cause remanded. Judgment reversed.