State v. Mason

Decision Date18 June 1888
Citation9 S.W. 19,96 Mo. 127
PartiesThe State to use of Comfort, Administrator, Appellant, v. Mason et al
CourtMissouri Supreme Court

Appeal from St. Louis City Circuit Court. -- Hon. A. M. Thayer Judge.

Affirmed.

C. B Stark, with G. M. Stewart, for appellant.

(1) When the relator was appointed administrator of the firm of Hill & Brown and took charge of the property in controversy as owner, exercising acts of dominion over it, the title vested in him by relation from the time of their delivery, on the principle of ratification. 1 Will. Ex'rs, 632 Evans v. Evans, 34 Law R. (Ch. Div). 597; Brown v. Lewis, 9 R. I. 497; Foster v. Bates, 12 M. & W. 226; Bodger v. Arch, 10 Exch. 333; Outlaw v. Farmer, 71 N.C. 31, 35; Alvord v. Marsh, 12 Allen, 603; 3 Will. Ex'rs, (Perkins' Ed). 1659. (2) The rule that lawful possession of personal property creates a presumption of ownership in the possessor operates against any one disturbing that possession; unless he can show a better title in himself, he will not be permitted to show that a stranger has title. State ex rel. v. Hope, 88 Mo. 430; Weeks v. Etter, 81 Mo. 375; Summons v. Austin, 36 Mo. 307; Smith v. Lydick, 42 Mo. 209; 2 Greenl. Ev. sec. 637.

Krum & Jonas for respondents.

(1) The possession of the property in controversy created only presumptive evidence of title in the appellant, which was open to rebuttal on the part of the respondents. To this effect are all of the cases cited by the appellant. State ex rel. v. Hope, 88 Mo. 430; Weeks v. Etter, 81 Mo. 375. (2) Upon the question of title, the court properly submitted the matter to the jury. The instruction given by the court of its own motion submitted to the jury all questions covered by the instructions asked by the appellant and refused by the court. (3) The jury found for the respondents upon the facts adduced in evidence. (4) The record presents merely the familiar case of conflicting evidence as to matters of fact. Such being the situation, this court will not undertake to determine the weight of evidence. (5) The rule of administration sought to be invoked by the appellant can have no application in this case. The case rather falls within Revised Statutes, section 2353, and Parker v. Rhodes, 79 Mo. 91.

Norton, C. J. Ray, J., absent.

OPINION

Norton, C. J.

The facts disclosed by this record are as follows: That about the fifteenth of March, 1882, Eliza Hill and Augustus R. Brown entered into partnership for carrying on the wall-paper business in the city of St. Louis; that both of said partners resided in the state of Tennessee, and that neither of them at any time gave their personal attention to said business, but appointed as their agents to represent them John W. Hill and Charles M. Brown, who carried on the business in the name of Hill & Brown; that in October, 1882, Augustus R. Brown, one of the partners and principals, died, and after his death, the said John W. Hill and Charles M. Brown continued to carry on the business at the same place, using the stock of goods on hand when he died, gave orders for goods, drew checks, executed promissory notes, and conducted the business in all respects as if said Augustus R. Brown were alive. It further appears that in July, 1883, C. D. Comfort was appointed administrator of the partnership estate of said Hill & Brown, who proceeded to inventory the assets of the firm, and took possession of the same. It also appears that in August, 1883, defendant Mason, as sheriff, levied certain writs of attachment on a portion of the goods thus inventoried and in possession of said Comfort as administrator of the partnership estate. These writs of attachment were issued in suits brought by the vendors against Eliza Hill, for the purchase price of the goods ordered by the agents of said firm, and this suit is brought by said Comfort on the bond of defendant as sheriff to recover the value of the goods seized by him and taken out of said Comfort's possession.

On the trial plaintiff introduced evidence tending to show, that while said J. W. Hill and C. M. Brown were carrying on said business in the name of Hill & Brown, they gave orders for a part of the goods in controversy before the death of Augustus R. Brown, and for the rest of them afterwards, and that all of them were delivered after the death of said Augustus; that the goods were ordered and shipped in the name of Hill & Brown. On the part of defendants, the evidence tended to show that all of the bills sued upon in the attachment suits were for goods ordered by J. W. Hill and C. M. Brown, after the death of said Augustus, and that all of the goods levied on under said attachments were ordered after the death of said Augustus.

The theory on which the case was tried is shown by the following instructions given by the court of its own motion, viz.: The first instruction directs the jury to find for plaintiff the fair market value of the property seized by defendant Mason under the writs of attachment, if they believed from the evidence that the property so seized at the time of its seizure was partnership property.

The second, third, fourth and fifth are as follows:

"2. In determining what portion, if any, of the property seized by sheriff Mason was partnership property of Hill & Brown, or should be treated by you as part of the assets of said firm the court instructs you as...

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