Vastine v. Wilding

• Citation: 45 Mo. 89
• Parties: JOSEPH P. VASTINE, PUBLIC ADMINISTRATOR, Respondent, v. PETER WILDING, Appellant.
• Decision Date: 31 October 1869
• Court: United States State Supreme Court of Missouri

45 Mo. 89

JOSEPH P. VASTINE, PUBLIC ADMINISTRATOR, Respondent,

v.PETER WILDING, Appellant.

Supreme Court of Missouri.

October Term, 1869.

Appeal from St. Louis Circuit Court.

Lackland, Martin & Lackland, for appellant, cited Simonds v. Oliver, 23 Mo. 32; 2 Greenl. Ev. 34; McEwan v. Portland, 1 Oregon, 300; Entriken v. Brown, 32 Penn. St. 364; Goodwin v. Garrison, 8 Cal. 615; 21 Barb. 333; Millay v. Butts, 35 Maine, 139; 2 Pars. Notes and Bills, 438, 480; King v. Wilson, 2 Doug. Eng. Rep. 633; Dugan v. U. S., 3 Wheat. 172; Dollfus v. Frosch, 1 Denio, 367; Mattram v. Mills, 1 Sandf. 37; Boeka v. Nuella, 28 Mo. 180; Lewis v. Bowers' Adm'r, 29 Mo. 203; Willard v. Moies, 30 Mo. 142.Bland & Thornton, for respondent, cited Armory v. Delamirie, 1 Strange, 505; Magee v. Scott, 9 Cush. 150; Millay v. Butts, 35 Maine, 139; Smith v. Dean, 19 Mo. 63; Hastings v. McKinley, 1 E. D. Smith, 277; Billings v. Jayne, 11 Barb. 620; Chitty on Bills, 204; Billy Jones v. Witter, 13 Mass. 305; Newman v. Lawless, 6 Mo. 301; Finney et al. v. Allen, 7 Mo. 419; Vaulx v. Campbell's Ex'r, 8 Mo. 227; Johnson v. Arundel, 34 Mo. 338.

CURRIER, Judge, delivered the opinion of the court.

This proceeding was instituted under the statute (Gen. Stat. 1865, ch. 128, §§ 17, 18) to recover possession of a certificate of deposit issued by the United States Savings Institution of St. Louis to August Berger, deceased. It was unindorsed, and reads as follows:

“ST. LOUIS, Mo., March 12, 1866.

August Berger has deposited in this office $1,000, payable to the order of himself on the return of this certificate, six months after date, with interest at the rate of five per cent. per annum.”

Berger died, and the plaintiff, as public administrator, took charge of his estate. The plaintiff had no knowledge of the certificate of deposit sued for until it was brought to him by the defendant, who solicited his assistance in collecting it, the bank having refused to pay it without the indorsement of Berger's administrator. The certificate had been found among the papers of Lewis Chrisner by his administratrix. Chrisner died in Belleville, Illinois, May 6, 1867. His administratrix delivered the papers to the defendant for the purpose of collection. How it came among Chrisner's papers in no way appeared, nor was there any testimony tending to throw any light upon the question of its ownership beyond what appears upon its face, and the fact of its possession by Chrisner. The plaintiff demanded possession of it as belonging to the estate of Berger; but the defendant refused to surrender the possession, claiming to hold the certificate as the property of Chrisner's estate. Upon this refusal the present proceedings were instituted.

If the title and ownership of the certificate and the fund it represented were in the plaintiff, as Berger's administrator, at the time of the demand, the defendant's subsequent possession, in opposition and hostility to the plaintiff's right, was, in the sense of the statute, unlawful, and warranted this suit. The real and substantial question for consideration, therefore, is this: Whose was that certificate of deposit? Was the title in the administrator of Berger, or was it in the administratrix of Chrisner?

The certificate itself establishes beyond controversy the fact that Berger was its original owner; that he deposited the fund, and, as evidence of his title, took a certificate of deposit payable to his own order. His title thus acquired must be presumed to continue until a divestment of it is shown; and a mere manual delivery of the paper without indorsement, and unaccompanied with evidence of a consideration paid, would not of itself pass the title. Even in case of personal chattels, as distinguished from choses in action, the presumption of ownership is with the party once shown to have had the title, until an alienation is shown; and the party relying on the fact of such alienation must prove it. So it was decided in Magee v. Scott, 9 Cush. 150, and that decision expresses the recognized doctrine on this subject. In commenting upon the facts of that case, Shaw, C. J., says: “It is to be regretted that the facts showing the relation of the parties and the circumstances under which the goods admitted to have been the property of the plaintiff came into the possession of the defendant, are not stated, in order to show the application of the rule of law laid down by the court. Such circumstances will usually indicate what was the nature and character of such change of possession, whether in consequence of a sale or temporary loan, or how. The plaintiff is proved to be the owner of the property, and the right of property will continue until a change proved, as by sale, lien, or voluntary loan. Whoever relies on such change must prove it; the proof lies on him. All that appears in the present case is that the property came into the possession of the defendant with the plaintiff's consent. How? On what trust or contract? This does not appear.” And it was decided accordingly that the presumption of title in the plaintiff, founded on his original ownership, continued and prevailed over any presumption of title in the defendant arising out of his...