Bayless v. Lefaivre
| Decision Date | 31 October 1865 |
| Citation | 37 Mo. 119 |
| Parties | WILLIAM BAYLESS, Respondent, v. ALEXIS LEFAIVRE, Appellant. |
| Court | Missouri Supreme Court |
Appeal from St. Charles Circuit Court.
Plaintiff asked the following instructions:
1. Peaceable possession of personal property is prima facie evidence of ownership, and in this case can only be rebutted by proof of the title in the defendant himself. Evidence, therefore, tending merely to show that the colt in controversy belonged to some third person, not a party to this suit, cannot avail the defendant as a defence or justification of his taking the property out of plaintiff's possession.
2. If it appear from the evidence that the colt in controversy was in the peaceable possession of plaintiff for about twelve months, as of his own property, and that defendant, without the knowledge or consent of plaintiff, took possession of the same, and kept it until taken from him by legal process in this case, then the jury will find for the plaintiff, unless it is proven to their satisfaction by the evidence that the colt belonged to defendant.
Defendant asked the following instructions:
1. If the jury believe from the evidence that the horse in controversy is the same colt that came to plaintiff's as a stray, the fact that he took up said colt, and fed him for a year or so, does not give him any title or right to the possession of said colt.
2. Where the plaintiff sues for an animal, he must show title in himself to such animal, or that he is lawfully entitled to the possession thereof; and if the horse in controversy came into plaintiff's possession when a colt, and did not then belong to plaintiff, and was a stray, plaintiff acquired no title or right to the possession of said colt under the stray law, though he may have nursed and fed said colt, and kept him up for a year or more, unless he has shown an exact compliance with the provisions of the law both as regards his own action and that of the justice of the peace before whom the colt was appraised; and in order to give him title or right to possession as a stray, he must show that when he took up the animal, if between the first of April and the first of November, it was found within his lawful enclosure; and if it was not taken up between these dates, then he must show that it was found on his plantation; that he was a householder, and that within ten days after he took it up he went before a justice of the peace of St. Charles county and made oath that it was taken up on his plantation, and that the marks and brands had not since been altered to his knowledge; that at least two disinterested householders took an oath that they would fully, fairly and impartially appraise the same; that they did appraise the same, and that their appraisement embraced a description of the size, color, sex, age, marks and brands of said stray, and that the justice of the peace entered the said description on his stray book; that the plaintiff, or justice, within fifteen days after such appraisement, delivered or caused to be delivered to the clerk of the County Court of St. Charles county a copy of such entry in his stray book; that plaintiff immediately after the appraisement, caused a notice to be set up at three of the most public places in the township in which the stray was posted, containing a copy of the entry in the justice's stray book. If plaintiff has not shown an exact compliance with and performance of the above requirements, he has no right to the possession of the horse or colt in controversy, and you will find a verdict for the defendant.
3. If this horse is not the colt that plaintiff had possession of, you will find for defendant; and even if it is the same colt that plaintiff had and fed for some time as a stray, you will find for defendant, unless plaintiff has proven that he had the same appraised and posted in accordance with law.
4. It is not necessary for the defendant to show that he is entitled to the possession of the horse sued for, but it is necessary for the plaintiff to prove that he is entitled to the possession of said horse; and if he has not proved his right to the possession of the horse, you will find for the defendant.
Which the court refused to give, to which refusal the defendant excepted; and the court of its own motion gave the following:
“The jury are instructed that the burden of proof as to the right of possession is on the plaintiff; and unless the jury are satisfied from the evidence in the case that the defendant took the property in controversy from the possession of the plaintiff, without his consent or knowledge, they will find for the defendant.”
To which defendant excepted.
H. C. Lackland, for respondent.
I. The 1st and 2d instructions given for plaintiff are correct.
II. The 3d. instruction given for pla...
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Baker v. Campbell
... ... a legal and not an equitable right. McCurdy v ... Brown, 1 Duer [N. Y.] 101; Baylis v. Lefaivre, ... 37 Mo. 119; Gartside v. Nixion, 43 Mo. 138. (5) ... Replevin will not lie to recover crops cut by an intruder in ... possession. The remedy ... ...
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Campbell v. Brown
... ... general or special interest in the property and the right of ... immediate possession. [Bayless v. La Faivre, 37 Mo ... 119; Gray v. Baker, 38 Mo. 160; Gartside v ... Nixon, 43 Mo. 138; Wright v. Richmond, 21 ... Mo.App. 76.] ... ...
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Campbell v. Brown
...state of the issues plaintiff must prove a general or special interest in the property, and the right of immediate possession. Bayless v. Lafaivre, 37 Mo. 119; Gray v. Parker, 38 Mo. 160; Gartside v. Nixon, 43 Mo. 138; Wright v. Richmond, 21 Mo. App. 76. And further that in actions begun be......
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Wright v. Richmond
...and then fail to comply with the provisions of the law. 2 Wag. Stat. 1301, sect. 30. Referring to this statute, it was held in Bayless v. Lafaivre (37 Mo. 119), that a party who had taken up a stray and kept it in his possession for a year without complying with the stray laws, was to be co......