
    HARRY H. WESTBAY, Appellant v. G. D. MILLIGAN & SON, Respondent.
    St. Louis Court of Appeals,
    March 12, 1901.
    
    1. Beplevin: TITLE: POSSESSION. To recover in replevin, the-plaintiff, in action involving the issue of title, must be able to show title, general or special, to the property and a right to its immediate and exclusive possession in himself.
    2. -: -: EVIDENCE: PRIMA EACIE PRESUMPTION OE TITLE. And in the absence of all evidence as to title in either party, possession of the property by one of them affords a prima facie presumption of title in him which disappears when evidence on that issue supervenes.
    
      Appeal from Barry Circuit Court. — Hon. Henry Glay Pepper, Judge.
    Aeeirmed.
    STATEMENT OE THE CASE.
    This is the second appeal in this case. Our decision on the former appeal is reported in 71 Mo. xlpp. 179, -where the material facts appearing on the first trial are stated. ’ On the second trial, plaintiff introduced in evidence a conveyance of the goods in dispute by A. W. Brown, the-general owner, to A. Y. Darroch, to secure certain creditors, which authorized a sale for that purpose. This instrument was not recorded, nor was there any evidence on this trial of a sale thereunder. When it was made, the maker, a merchant at Monett, was largely in debt to defendants Milligan & Son for goods, wares and merchandise, and had previously executed to them a mortgage covering on his entire stock and weekly remittances of proceeds of sale thereof. He, however, at once turned over the key to his store to A. Y. Darroch. The latter instructed the salesman to meet him at the store about midnight “when the arc lights were out,” which the evidence shows was done, and the goods were boxed up, distributed and secreted in various dwellings and stores around town. On the next morning the present defendants brought a replevin against the parties in whose possession they found the goods covered by the mortgage to them. Other creditors of Brown brought attachments against such parties. The officers executing these writs found the goods in the possession of the respective parties, and found those on plaintiff’s premises hidden in a cellar, the door to which was covered by a carpet upon which a woman was standing engaged in ironing clothes, the plaintiff having denied to the officer that he had any of the goods when lie was requested to surrender them under the writ in the bands of tbe officer. Thereafter, tbe defendants in tbe suit of replevin, which tbe present defendants bad instituted, disclaimed any interest and that action of replevin was discontinued, whereupon tbe present plaintiff brought this action to recover tbe same goods. At tbe conclusion of tbe trial, developing tbe foregoing facts, tbe court at tbe request of tbe defendants, instructed tbe jury that plaintiff was not entitled to recover. From a verdict and judgment in accordance, plaintiff has prosecuted bis appeal -to this court.
    
      W. Oloiid & Davis and A. V. Darroch for appellant.
    (1) Tbe chattel mortgage from Brown to Milligan was void under section 8397, Revised Statutes 1889. Scott v. Riley, 49 Mo. App. 1. c. 253; Stone v. McNealy, 59 Mo. App. 1. c. 399. (2) And tbe burden of proof was on defendants to show that their taking of tbe property under their writs was rightful. Oobbey on Replevin, sec. 84. (3) Tbe rule that where tbe plaintiff’s title is denied, naked possession is not sufficient to maintain tbe action, but tbe plaintiff must prove property, general or special, is not applicable in this case under tbe answer of Milligan & Son, no denial of property either general or specific, having been made, and tbe answer containing no averment of property in a third person. Scott v. Riley, 49 Mo. App. 1. c. 253; Stone v. McNealy, 59 Mo. App. 1. c. 399; Gray v. Parker, 38 Mo. 1. c. 165.
    
      Horine & Delaney for respondents.
    (1) To say that a mere possession of this character and thus secured is sufficient to maintain a replevin suit against an unquestioned, honest creditor, will lend color to tbe inference that the possession of a burglar is an honest title. Bayless v. LaEaivre, 37 Mo. 119; Pope v. Cordell, 47 Mo. 251; Wright v. Richmond, 21 Mo. App. 76; Scott v. Riley, 49 Mo. App. 251. (2) Mere possession, without proof of general or special' property, is not superior to the claim of defendants, even if the mortgage of defendant is fraudulent in fact. (3) Although sales were made in the ordinary course of trade, and on remittances made, yet this conduct can only be questioned by a creditor or by a bona fide purchaser, and under the evidence, the plaintiff herein is neither. So far as the record discloses, he is a stranger and wrongdoer. R. S. 1889, sec. 5176; Johnson v. Jeffries, 30 Mo. 423; Drew v. Drum, 44 Mo. App. 25; Bank v. Bank, 50 Mo. App. 96; Mead v. Maberry, 62 Mo. App. 562.
    
      
      This case was received too late to be placed in chronological order.
    
   BOND, J.

To recover in replevin the plaintiff, in an action involving the issue of title, must be able to show title, general or special, to the property and a right to its immediate and exclusive possession in, himself. In the absence of all evidence as to title in either party, possession of the property by one of them affords a prima facie presumption of title in him which disappears when the evidence on that issue supervenes. Springfield Grocer Co. v. Shackleford, 56 Mo. App. 642. In the case at bar, the testimony of plaintiff’s witness, J. S. Bender, is that plaintiff denied that he (plaintiff) had possession of the goods notwithstanding which the officer, who was armed with a writ authorizing their seizure, found the goods concealed in the cellar of plaintiff’s residence. Plaintiff did not, on the present trial, introduce any evidence disproving this statement of his own witness. Unless plaintiff’s statement, so testified to, was untruthful, he did not even have possession of the goods and could not invoke any presumption which might arise from possession. But, conceding for the argument only, that plaintiff was in possession of the hidden goods in his cellar and of the others stored in different localities in the town, how could that avail him anything in view of the evidence introduced by himself that the title and ownership of the goods in dispute was in A. V. Darroch, with whom no privity of title or possession was shown on the part of the plaintiff under the present record ? Plaintiff can, of course, only recover in this action upon the strength of his own title, since that became the issue in this case under the pleadings and the evidence. Upham and Gordon v. Allen, 16 Mo. App. 206. Had he introduced evidence, on this trial, connecting himself with the title of Darroch, he would have been in a proper position to demand a submission of the issue to the jury, since Darroch’s title, if any, emanated from the same source from which the defendants herein claimed their title, namely, A. W. Brown, the general owner of the goods. These deficiencies in the proof adduced on the present trial were fatal to the sustension of plaintiff’s right to recover, and, therefore, relieve us from the necessity of passing upon the validity of the title set up by defendants to the goods taken from their possession in this action. The result is that the judgment is affirmed.

All concur.  