{ "id": 1900529, "name": "Knox v. Hellums", "name_abbreviation": "Knox v. Hellums", "decision_date": "1882-05", "docket_number": "", "first_page": "413", "last_page": "419", "citations": [ { "type": "official", "cite": "38 Ark. 413" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "11 Ark., 630", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8727928 ], "opinion_index": -1, "case_paths": [ "/ark/11/0630-01" ] }, { "cite": "27 Ark., 185", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "19 Barb., 481", "category": "reporters:state", "reporter": "Barb.", "opinion_index": -1 }, { "cite": "36 Ark., 529", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1872363 ], "opinion_index": 0, "case_paths": [ "/ark/36/0529-01" ] }, { "cite": "11 Ark., 279", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 } ], "analysis": { "cardinality": 457, "char_count": 9844, "ocr_confidence": 0.435, "pagerank": { "raw": 4.090700512346796e-07, "percentile": 0.9092366002805569 }, "sha256": "8932ad9b95b3dbaca8cc595fc72fcfe024b4099825e36cdc0f93ab63546e0315", "simhash": "1:ebf23d62abb4dc80", "word_count": 1741 }, "last_updated": "2023-07-14T15:07:01.048516+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Knox v. Hellums." ], "opinions": [ { "text": "English, C. J.\nJ. P. Heliums sued J. C. Knox, in replevin, before a justice of the peace of Lincoln county, \u25a0for a bale of cotton. The judgment was against Heliums before the justice, and he appealed to the Circuit Court, where, on a trial de novo, the verdict and judgment were in his favor; a new trial was refused Knox, and he took a bill of exceptions and appealed to this court.\nI. On the trial, defendant offered a mortgage in evidence, which the court excluded, and he. excepted, but the ruling of the court in excluding the mortgage was not made .ground of the motion for a new trial, and this exception was thereby abandoned under a well settled rule of practice.\nII. The fii\u2019st and second grounds of the motion for a new trial were that the verdict was not sustained by the evidence, and was contrary to law.\nIt is sufficient to say of the evidence that it was in conflict, and it was the province of the jury to weigh and determine \u25a0on which side the preponderance was. The evidence will be further noticed in considering the instructions.\nIII. For plaintiff, and against the objection of defendant, the court instructed the jury \u201cthat if the evidence shows that plaintiff was in possession of the property (the cotton in \u2022controversy,) and that it was taken by defendant without his consent, this is prima facie evidence of title in plaintiff, and then the burden of proof is on defendant to show either that plaintiff had no title, or to show a better title in himself.\u201d\nThe giving of this instruction was made the fourth ground of the motion for a new trial..\nHeliums testified, in substance, that early in the year, 1879, he rented to William Blair part of his place, in Lincoln county, for $55.00, the rent to be paid in the fall of that year. That about October, Blair turned his whole crop over to him to pay rent and a supply account he had against him, amounting in all to about $140.00. After-wards, and in the same October, while he was at Lincoln-Circuit Court, Blair took enough of the cotton to Hoke\u2019s gin-house to make a bale, the bale of cotton in controversy. On the next day after Blair hauled the cotton to the gin,, witness went there, and found the bale marked in defendant\u2019s name ; he put the initials of his own name upon it, and on the same day removed it to his place of residence. He-gave Blair no authority to g'et the cotton and haul it to the-gin. A short time after witness had taken the cotton from-the gin to his residence, defendant came there, in his-absence, and took the cotton away It was in evidence,, that after Blair had taken the cotton to the gin, he sold it to the defendant.\nIn an action for the conversion of personal property, the-mere facts of lawful possession in plaintiff, and wrongful! taking by defendant, are sufficient. Lawful possession is-sufficient evidence of title without proving the transfer by which plaintiff acquired title; and possession is presumed lawful, unless the contrary appears. Abbott\u2019s Trial Evidence, 623.\nIt is undeniable that possession of personal property is prima facie evidence of title. Hutchinson, ad., v. Phillips et al, ad., 11 Ark., 279.\nHad nothing more been proven than that plaintiff was in possession of the bale of cotton sued for, and that defendant went to his residence in his absence and took it away, plaintiff\u2019s title would have been made out. But it was proven, also, that plaintiff went to Hoke\u2019s gin, found the bale of cotton there marked in defendant\u2019s name, that he marked it in Ms own name, removed it to his place of residence, and defendant took it from there. If this had been all the evidence, possession shown to have been so obtained by plaintiff would not have been prima facie evidence of title in him.\nBut this was not all the evidence. Plaintiff testified that Blair was his tenant, owed him for rent and supplies, and turned his whole cotton crop over to him to pay the rent and supply account, and afterwards, without his consent., and in his absence, took part of the cotton to Hoke\u2019s gin and sold it to defendant. If this was true, if the cotton was so turned over to him, Blair had no right afterwards to take it and sell it to defendant, and he acquired no title by the sale.\nIV.' The third ground of the motion for a new trial was-that the court erred in refusing the second and third instructions moved for defendant.\nDefendant asked five instructions, the court gave the first, fourth, and fifth, and refused the second and third.\nBy the first the court charged the jury, in effect, that plaintiff must prove ownership, general or special, of the bale of cotton, that he was entitled to possession of it, and wrongful detention by defendant.\nThe second, which the court refused, was, \u201cif the proof should show the fact that the plaintiff has a lien on the bale of cotton for rent, it gives him no right to recover it in this action, and he had no right to take possession of it under such lien.\u201d\nIf the proof had been that plaintiff had nothing but a landlord\u2019s lien on the cotton, this instruction would have been applicable and law. In such case, he would have to resort to attachment or bill in Chancery to enforce his lien, But the instruction ignores the evidence that the cotton was turned over to plaintiff by the tenant to pay the rent, etc., and was properly refused. Flash, Lewis & Co. v. Gresham, 36 Ark., 529.\nThe fifth instruction which the court gave, was, in effect, the sanj,e, and in better form in view of the evidence, than the third, which the court refused.\nThe court gave the fourth instruction, which was that \u201cif the jury find from the evidence that Blair had paid plaintiff the rent, and that the cotton was only turned over to him as a security for the rent, they will find for defendant.\u201d\nBlair admitted in his testimony, in effect, that he had turned his crop of cotton over to plaintiff for rent, but denied that he had turned it over on account of supplies as well as rent, and testified that he had paid the rent before he sold the bale of cotton in suit to\u2019 defendant, which plaintiff denied in his testimony. The fourth instruction submitted this conflict in evidence to the jury.\nV. The last ground of the motion for a new trial was that the coui't erred in giving instruction numbered two of its own motion.\nThis instruction was substantially the same as instruction numbered four, moved for defendant, and above copied.\nUpon the whole, there was no substantial error to the prejudice of appellant in the instructions.\nPossibly, from all the evidence, Blair may not have turned bis cotton crop over to plaintiff on account of supplies as well as rent, and possibly he may have paid th\u00e9 rent in the manner stated by him before he removed and sold the cotton in suit to defendant,-but, as before said, these are questions for the jury.\nAffirmed.", "type": "majority", "author": "English, C. J." } ], "attorneys": [ "D. H. Rousseau, for appellant':", "J. M. Cunningham, for appellee:" ], "corrections": "", "head_matter": "Knox v. Hellums.\n1. Practice: Exceptions ; Motion for new trial.\nExceptions to tlie rulings o\u00ed the court in excluding testimony are considered abandoned unless the rulings are made grounds for new trial.\n2. Beplevin: Evidence of title; Possession.\nIn an action for the conversion of personal property, the mere facts of lawful possession in plaintiff, and wrongful taking by the defendant, are suffieient. Proof of the transfer by which the plaintiff acquired title is unnecessary. The possession is presumed lawful until the contrary appears.\n3. Same: Landlord\u2019s Lien.\nA landlord\u2019s lien will not sustain replevin for the crop. I-Ie must enforce it by attachment or bill in equity.\nAPPEAL from Lincoln Circuit Court.\nHon. X. J. Pine all, Circuit Judge.\nD. H. Rousseau, for appellant':\nThe first instruction for appellee erroneous. It assume\u00bb \u2022that if a wrongful, or any kind of taking, from appellee by appellant, is disclosed by the testimony, the burden of proof devolves on appellant to show that he had as good or better right than appellee, and if such taking was without the consent of appellee, it was prima facie evidence of title in him. Chap. CXV. Gantt's Digest merely supplants the old remedy of replevin and detinue without changing its incidents. See New York decisions under a similar Code provision. Nichols v. Michcels, 23 N. Y., \u25a0264; Roberts v. Randall, 3 Sand., (N. Y.) 707; Rockwell v. Sanders, 19 Barb., 481-82.\nUnder either form of action the onus was on plaintiff to show that he was the owner, or had a special ownership, and that it was wrongfully detained. Neis v. Gillum, 27 Ark., 185, and authorities cited; Sec. 5035 Gantt's Digest, \u25a0 3d and 4th subdivisions.\nThe second and third instructions for appellant should have been given, as the proof clearly showed that the cotton \u25a0had only been turned over, if at all, for the purpose of securing the rent.\nThe second instruction given by the court was misleading. 'There was no evidence of a delivery of the crop to Heliums, and the whole evidence shows that the rent was paid long before Blair hauled the cotton to the gin.\nThe mortgage was sufficiently definite to create a lien on two bales of cotton of the first picking of any crop that Blair might cultivate for the year 1879.\nJ. M. Cunningham, for appellee:\nThere being a conflict of testimony, the jury were the judges of its preponderance. 11 Ark., 630; 14 lb., 530.\n\u2022 Appellee, having a lien for rent and the possession, had the better right. Benjamin on\u2019Sales, 597.\nPeaceable possession, when shown, makes a prima facie \u25a0case, and the onus is on defendant, and he must show title, or at least better title than the plaintiff. Hilliard on Torts, \u25a0vol. 1, 495 ; 2 Oreenleaf Bv., 637.\nThe marking of the cotton by Hoke in Knox\u2019s name did not pass the possession, unless done by Heliums\u2019 consent or ratified by him. Benjamin on Sales, 28 and 29.\nThe second instruction asked for appellant, though good in the abstract, was not applicable to the case.\nThe other instructions are obviously correct." }, "file_name": "0413-01", "first_page_order": 411, "last_page_order": 417 }