Gartside v. Nixon

43 Mo. 138

Opinion

Baker, Judge,

delivered the opinion of the court.

This is a proceeding under the statute for the claim and delivery of personal property, instituted by the respondent, to recover a horse then in the possession of the appellant. The plaintiff’s title to the property is put in issue by the pleadings. At the instance of the plaintiff, the court instructed the jury that “the plaintiff claims and alleges that he and the persons under whom he claims title to the horse have had actual possession of him ever since some time in September, 1865 ; and if the jury believe the fact to be so, then the plaintiff is entitled to recover the horse, unless the jury believe from the evidence that the horse really and in fact belonged to the defendant.” This instruction is erroneous. Where the plaintiff’s title is denied, nakéd possession is not sufficient to maintain an action. It must appear that he had a right to the possession of the property. The plaintiff must prove that he had a general or special property in the horse. (10 Mo. 277; 38 Mo. 160 ; 9 Mo. 256 ; 1 Johns. 380.)

The judgment of the Circuit Court is reversed and the cause, remanded.

The other judges concur.