Kash v. Fitzpatrick

Court of Appeals of Kentucky

Kash v. Fitzpatrick

3 Ky. Op. 36, 1869 Ky. LEXIS 268

DecidedApril 23, 1869

StatusPublished

This text of 3 Ky. Op. 36 (Kash v. Fitzpatrick) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Kash v. Fitzpatrick, 3 Ky. Op. 36, 1869 Ky. LEXIS 268 (Ky. Ct. App. 1869).

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Opinion

Opinion of the Court by

Judge Williams:

Appellant brought separate suits against appellees to recover of the one a mare and of the other her colt, which were consolidated and tried together, being submitted by agreement to the same party. Verdict and judgment being for the defendants the plaintiff has appealed.

The mare was in possession of Confederate soldiers, who left her either at appellant’s or his brother’s, and afterwards Confederate soldiers took her away, but whether the same who had [37]*37left her does not appear other than inferentially, subsequently she came by purchase to appellee Fitzpatrick, who in the presence of appellant, without objection by him, traded her, but not the colt, to Looney. The mere leaving the mare with Nash or his brother invested neither presumptively with a general property, for the legal prima facie presumption would be that she was the property of the “Confederacy” then at war with the United States, and that the title was in either the one or the other government.

Holt, for appellant. Turner, Reid & Reid, for appellee.

As the property was left by soldiers, the bailee undertook no special or general responsibility other than not to act fraudulent and convert the property to his own use, and when she was taken from him his bailment was at an end, whether by the same or other Confederate soldiers, but the presumption might be indulged, in the absence of all proof, that they were the same.

Whether, therefore, Nash was the bailee or purchased from his brother he only held a special property so long as he held possession, and as the possesion was without consent, or meritrieious, his special' rights and responsibilities ended when he lost possession without, his own fault, if by his own fault he thereby valuntarily parted with it, and in either view he cannot recover. His presence when the mare was traded and making no objection is binding on his, whether he knew her or not, a man must know his own property or abide the equities which others may innocently acquire by reason thereof, this though probably might not bar him of a recovery only against the vendee Looney had he a legal title.

We think the instructions given contain no injurious and revers-able error-as to appellant, nor did the refusal to instruct as asked on his behalf. Wherefore, the judgment is affirmed.

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Opinion of the Court by

Judge Williams:

Appellant brought separate suits against appellees to recover of the one a mare and of the other her colt, which were consolidated and tried together, being submitted by agreement to the same party. Verdict and judgment being for the defendants the plaintiff has appealed.

The mare was in possession of Confederate soldiers, who left her either at appellant’s or his brother’s, and afterwards Confederate soldiers took her away, but whether the same who had [37]*37left her does not appear other than inferentially, subsequently she came by purchase to appellee Fitzpatrick, who in the presence of appellant, without objection by him, traded her, but not the colt, to Looney. The mere leaving the mare with Nash or his brother invested neither presumptively with a general property, for the legal prima facie presumption would be that she was the property of the “Confederacy” then at war with the United States, and that the title was in either the one or the other government.

Holt, for appellant. Turner, Reid & Reid, for appellee.

As the property was left by soldiers, the bailee undertook no special or general responsibility other than not to act fraudulent and convert the property to his own use, and when she was taken from him his bailment was at an end, whether by the same or other Confederate soldiers, but the presumption might be indulged, in the absence of all proof, that they were the same.

Whether, therefore, Nash was the bailee or purchased from his brother he only held a special property so long as he held possession, and as the possesion was without consent, or meritrieious, his special' rights and responsibilities ended when he lost possession without, his own fault, if by his own fault he thereby valuntarily parted with it, and in either view he cannot recover. His presence when the mare was traded and making no objection is binding on his, whether he knew her or not, a man must know his own property or abide the equities which others may innocently acquire by reason thereof, this though probably might not bar him of a recovery only against the vendee Looney had he a legal title.

We think the instructions given contain no injurious and revers-able error-as to appellant, nor did the refusal to instruct as asked on his behalf. Wherefore, the judgment is affirmed.

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Bluebook (online)

3 Ky. Op. 36, 1869 Ky. LEXIS 268, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kash-v-fitzpatrick-kyctapp-1869.