Bayless v. Lefaivre

Holmes, Judge, delivered the opinion of the court. The plaintiff had taken up a stray colt and kept possession of it for a year without any proceedings as a taker up of stray animals, under the statute concerning strays. (R. C. 1855, p. 1506.) At the end of that time the colt strayed again from him, and was taken up by another person, and, while in his possession, was claimed by the defendant as his property, and the animal was given up to him. The plaintiff now brings this suit to recover the same as his property, unlawfully detained. By this act ( § 33) any person who takes up a stray, and fails to comply with the provisions of the act, is subjected [123] to a penalty of twenty dollars ; and it is a thing forbidden by law. In such case the party is a transgressor, his possession is unlawful, and he is to be considered as a trespasser ab initio. (Harryman v. Titus, 3 Mo. 214; Ray v. Davison, 24 Mo. 280.) No claim can arise from an illegal transaction, or one forbidden by law; and where the plaintiff must bring forward his own unlawful act to support his claim, he must fail. (1 Hill, on Torts, 170; Gregg v. Wyman, 4 Cush. 326; Forster v. Thurston, 11 Cush. 322.) Such being the character of the plaintiff’s possession here, he failed to show any such right of possession as will support this action. If the plaintiff’s possession had been a lawful one, proof of actual possession merely, and that the property had been taken out of his possession, would have supported the allegation that he was lawfully entitled to the possession, and that it was unlawfully detained by the defendant. Such a possession would have been prima facie evidence of ownership as against a wrong-doer, or one showing no better title. (2 Greenl. Ev. § 637; Bond v. Mitchell, 3 Barb. 303.) But here the plaintiff’s possession was not only an unlawful one, but it was proved also that the colt had strayed away completely out of his possession and was lost to him, and that it had been taken up again by another person, from whom the defendant obtained the actual possession. Under these circumstances, it cannot be said that the defendant took the animal out of the plaintiff’s possession. In Criner v. Pike (2 Head, 398) the plaintiff’s mare had merely gone to her usual range in the woods, and came to the defendant’s field in the neighborhood, and it was held that the plaintiff’s possession was not destroyed.- Here the colt had gone beyond the usual range of the plaintiff’s animals, was considered by him as lost, and was found at a distance of five miles off, and within the usual range of the defendant’s animals, whence it would seem to have originally strayed. The evidence did not show that the colt was taken out of the plaintiff’s posession ; and the possession of the defendant, under a claim qf [124] ownership, must be considered a better title than any that was shown by the plaintiff. For these reasons, the 1st, 2d and 3d instructions asked by the defendant should have been given; and the 1st and 2d instructions asked by the plaintiff, as well as that given by the court of its own motion, were erroneously given, as not being warranted by the evidence in the case. Judgment reversed. The other judges concur.