Shaw v. Kaler

Ames, J.

The case finds that the plaintiff was in the actual possession of the property under a claim of right, and that the defendant’s interference with it was the act of a mere wrongdoer. He took possession of it, not in the right of Guild, as his agent or for his benefit, but on the contrary he claimed it in his own right, under a mortgage from Guild. Of the existence of this mortgage, however, he furnished no evidence whatever. It must therefore be considered as a part of the case, that the title under which he professed to act had no existence, and that he was a mere trespasser. It has been settled by a long course of decisions, that possession is a sufficient title to support an action of trespass or trover against a party having no right. A mere wrongdoer is not permitted to question the title of a person in the actual possession and custody of the goods, whose possession he has disturbed. Armory v. Delamirie, 1 Stra. 504. Rogers v. Arnold, 12 Wend. 30, 37. Winship v. Neale, 10 Gray, 382. Burke v. Savage, 13 Allen, 408. In the action of trespass, as possession is primé fade evidence of right, so a mere stranger cannot deprive the party of that possession without showing some authority or right from the true owner, to justify the taking. This sound and incontrovertible principle has been extended to trover, and it equally applies to replevin. Such is substantially the lan *450 guage of the supreme court of New York in Rogers v. Arnold, above cited.

The case of King v. Indian Orchard Canal Co. 11 Cush. 231, is relied upon by the defendant, but appears to us to have very little bearing upon the question. The plaintiff in that case wholly failed to make out his own actual possession, and the defendants claimed under a bill of sale from the true owner. In both these particulars that case differed entirely from the case now under consideration. Exceptions overruled.