Brown v. Petersen

Mr. Justice Morris delivered the opinion of the Court: 1. The appellant contends that the appellee’s claim was not made until July 1, 1903, and that it was too late, as the articles levied on had then been sold. But the testimony is that the appellee’s claim was made to the marshal on June 27, 1903; and that the goods were sold on the same day. There is nothing in the record to show whether the sale was before or after the receipt of notice by the marshal; but as the law recognizes no fractions of a day, unless the circumstances demand it and there is testimony to the point, we must assume that the notice and the sale were simultaneous, and therefore that the notice was in due time. The marshal’s notice to the justice of the peace that the claim had been made, and the auctioneer’s retention of the articles sought to be sold, must be regarded -as corroborative evidence that the claimant’s notice was received in due time to stop the sale. 2. The appellant’s next contention is that the appellee did [363] not show such property in the goods in question as entitled him under the Code to maintain a claim of ownership. But this contention is without foundation in the law. The appellee had a lien on the property for the payment of his rent, which was something more than the tacit lien given to a landlord by the statute; and he had it in his actual possession as the qualified -owner of it, subject to the devesting of his right by the payment of the claim. Now, it is elementary law, which needs no elaboration of argument or citation of authorities in support of it, that a person in possession of property under a lien is the owner of it against all the world and even against the actual owner until his claim is paid; and no one, not even the actual owner, has any right to disturb his possession, without previous payment of such claim. There is no doubt whatever that the appellee was entitled to maintain this proceeding. Nor was he precluded from maintaining it hy his becoming a purchaser at the marshal’s sale. His action in that regard was no more than a prudent precaution to save the property from sacrifice. 3. In the third place, the appellant contends that the jury might not have believed Petersen’s testimony; that they were the sole judges of the facts, and that therefore the cause should have been submitted to them for their determination; and it is argued that there were several suspicious facts about the case which the jury should have heen allpwed to consider, and which might have had weight with them. Undoubtedly the case was not above suspicion as to some understanding between Petersen and Hood; but that understanding may have been entirely proper and legitimate, and it has long since been well established in our law that suspicion is not proof and cannot be allowed to take the place of proof. The appellant’s contention would require that every case of uncontradicted and unimpeached testimony-should be submitted to a jury, when there is no countervailing testimony. But this is not the law. The law is that positive testimony uncontradicted, and not inherently improbable, is prima facie evidence of the fact which it seeks to establish it, and the jury is not at liberty to disregard it. Crane v. Morris, 6 Pet. 598, 8 L. ed. 514; Kelly v. Jack [364] son, 6 Pet. 622, 8 L. ed. 523; United States v. Wiggins, 14 Pet. 334, 10 L. ed. 481; Quock Ting v. United States, 140 U. S. 417, 35 L. ed. 501, 11 Sup. Ct. Rep. 733, 851; The City of New York (Alexandre v. Machan) 147 U. S. 72, 37 L. ed. 84, 13 Sup. Ct. Rep. 211. We find no error in tbe record, and tbe judgment appealed from must therefore be affirmed, with costs. And it is so-ordered. Affirmed. A motion for a rebearing was overruled May 5, 1905.