Avery v. Clemons

The evidence offered by the defendants, on the trial, and received by the court below, was, in our opinion, *309clearly admissible, for the purpose of proving that Simmons f ’ , . . ? . , was the owner ot the property m question, when it was taken under the attachment of Clemons. It showed those acts on the part of Simmons, while he was in the possession of it, which naturally and usually flow from and accompany the ownership of personal property; and therefore, tended to evince such ownership ; and his declarations accompanying those acts, were admissible, for the purpose of showing their true character. They tended to prove for what purpose and with what motive, they were done ; which was necessary to be understood, in order that the proper effect might be given to them. Indeed, those declarations constituted a part of the acts themselves. The possession of personal property is, unexplained, prima facie evidence of ownership in the possessor; but, as it is consistent with ownership in another, it is not conclusive ; and whether the person in possession is the owner, depends, not upon the mere fact that he is in possession of it, but upon the nature and character of that possession. These are properly evinced, by his conduct with regard to it; and the nature of that conduct can only be understood, by the declarations accompanying it. Declarations, in such cases, are not, as claimed by the plaintiff, obnoxious to the objection which ordinarily applies to hearsay testimony. They are not received as declarations of third persons, to prove the truth of what is asserted; but as being, of themselves, acts or things done by them, and which explain or characterize the acts which they accompany, and show their true character.

It is urged, that it is unjust thus to permit the title of the owner of property to be affected, by the acts or declarations of his bailee. If it were conceded, that the plaintiff was, as he claimed to be, the owner of the property, and had lent it to Simmons, then indeed the acts or declarations of the latter could not be received to divest the former of his title, unless they were done or uttered with his consent; but in this case, the title of the plaintiff and his loan to Simmons were contested, and constituted the very question in dispute between the parties ; and upon that very point those acts and declarations were adduced. And if there had been a formal loan, by the plaintiff, to Simmons, they were clearly admissible, according to the authorities, to prove that loan to be merely colourable. Willies v. Farley, 3 Car. & Pa. 395. (14 E. C. *310L. 366, 7.) is precisely in point. In that case, A sued out a writ of fi.fa. against the goods of B, and the sheriff executed a bill of sale of certain goods to A; after which B remaining in possession of the goods, the sheriff again took them under another execution against B; and in an action of trover, by A, against the sjieriff, for taking these goods, it was held, that the declarations of B, at the time of the second execution, were evidence for the defendant, to show that A’s execution was colourable. Babb v. Clemson, 10 S. & R. 419. S. C. 12 Id. 328. is to the same effect.

It is stated in the motion, that the testimony we are considering was unaccompanied with any evidence that the declarations of Simmons were made in the hearing or with the knowledge of the plaintiff, or that said acts were authorized or assented to, by the plaintiff unless this might be inferred from the fact that he lived some four or five miles from Simmons, and had, without objection or interference, permitted Simmons to use and occupy the property since the plaintiff claimed to have purchased it. Proof of these circumstances was admissible, to show, that the plaintiff knew of the conduct of Simmons in relation to the property, and assented to it. We cannot, on this motion, say, that those circumstances were insufficient for that purpose : it was the province of the jury to determine their weight.

A new trial, therefore, should not be advised.

In this opinion the other Judges concurred.

New trial not to be granted.