#### Morgan v. Bradley.

} From Rutherford.

Where A turned cattle into the woods, and B thinking one of them his, took possession of it, after which, A, ignorant of B’s possession, sold it to C, who was also ignorant of it, it was held that 0 might, in his own name, sue B, as the possession which he had at the time of the sale could not be deemed adverse.

This was an action of trover for a steer, and upon the trial tlic-re was contradictory testimony as to title. It appeared, however, that the plaintiff purchased the steer in December, 1821, of his brother Elijah, who had turned it out to graze in the fall preceding; it farther appeared, also, that the defendant was in possession of the steer, claiming him as his own, and had been for some time before the sale. Demand and refusal to deliver up the steer were proved by the plaintiff, the defendant at the time contending that the property of the steer was in him. And upon these facts the defendant, by his counsel, moved before Paxton, Judge, for a nonsuit upon the ground that the plaintiff could not sue in' his own name by reason of the adverse possession of defendant at the time of his purchase; which motion was overruled, and the jury having found a verdict for the plaintiff, the defendant obtained a rule for new trial upon the same grounds, which, being discharged, there was judgment against him and he appealed to this Court.

Hall, Judge.

The reason urged for a new trial in this case is, that the Court refused to nonsuit the plaintiff, because, when lie purchased the steer in dispute, he purchased a chose in action and could not bring the action in his own name. The facts are, that'Elijah Morgan was the owner of the steer, and had turned him out with other cattle into the woods. In this situation (as he and the *560plaintiff supposed him to be,) he sold him to the plaintff; ^ut it afterwards appeared that the defendant, before the sale, had by mistake taken up the steer with his other ca^je< supposing him to be one of his own raising. It is argued that this mistake divested the owner of his possession, so that he could only sell a chose in action. At the time of the sale there was no adverse possession by the defendant, as there afterwards was when the plaintiff made a demand of the steer. There was nothing of cham-perty or maintainance in the case; the seller and owner were both ignorant that the defendant had taken the steer into his inclosure. I think from all the circumstances of the case, that the rule for a new trial should be discharged. See Nichols v. Bunting, ante 86.

Judgment aeeirmed.