
    Joseph P. Vastine, Public Administrator, Respondent, v. Peter Wilding, Appellant.
    1. ’Evidence — Certificate of deposit — Manual delivery, effect of — A. deposited a certain fund in bank, and, as evidence of Ms title, took a certificate of deposit payable to bis own order. His title thus acquired must be presumed to continue until a divestment of it is shown, and a mere manual delivery of the certificate to B., without indorsement, and unaccompanied with evidence of a consideration paid, would not pass the title as against A.
    2. Practice, civil — Trial—Instructions neither given nor refused, effect of.— An instruction was asked by defendant, at the conclusion of plaintiff’s case, to the effect that plaintiff was not entitled to recover on the proofs. The court took no action on the instruction, but the trial proceeded, and defendant put in his evidence: held, that the instruction was practically refused.
    
      Appeal from St. Louis Circuit Court.
    
    Lackland,, Martin & Lackland, for appellant,
    cited Simonds v. Oliver, 23 Mo. 32; 2 Greenl. Ev. 34; McEwan v. Portland, 1 Oregon, 300; Entriken v. Brown, 32 Penn. St. 364; Goodwin v. Garrison, 8 Cal. 615; 21 Barb. 333 ; Millay v. Butts, 35 Maine, 139; 2 Pars. Notes and Bills, 438, 480 ; King v. Wilson, 2 Doug. Eng. Rep. 633 ; Dugan v. U. S., 3 Wheat. 172 ; Dollfus v. Frosch, 1 Denio, 367; Mattramv. Mills, 1 Sandf. 37; Boeka v. Nuella, 28 Mo. 180; Lewis v. Bowers’ Adm’r, 29 Mo. 203 ; Willard v. Moies, 30 Mo. 142.
    
      
      Bland & Thornton, for respondent,
    cited Armory v. Dela-mirie, 1 Strange, 505; Magee v. Scott, 9 Cush. 150 ; Millay v. Butts, 35 Maine, 139 ; Smith v. Dean, 19 Mo. 63 ; Hastings v. McKinley, 1 E. D. Smith, 277; Billings v. Jayne,( 11 Barb. 620 ; Chitty on Bills, 204; Billy Jones v. Witter, 13 Mass. 305; Newman v. Lawless, 6 Mo. 301; Finney et al. v. Allen, 7 Mo. 419; Yaulx y. Campbell’s Ex’r, 8 Mo. 227; Johnson v. Arundel, 34 Mo. 338.
   Currier, Judge,

delivered the opinion of the court.

This proceeding was instituted under the statute (Gen. Stat. 1865, ch. 128, §§ 17, 18) to recover possession of a certificate of deposit issued by the United States Savings Institution of St. Louis to August Berger, deceased. It ivas unindorsed, and reads as follows:

“ St. Louis, Mo., March 12, 1866.
“August Berger has deposited in this office $1,000, payable to the order of himself on the return of this certificate, six months after date, with interest at the rate of five per cent, per annum.”

Berger died, and the plaintiff, as public administrator, took charge of his estate. The plaintiff had no knowledge of the certificate of deposit sued for until it was brought to him by the defendant, who solicited his assistance in collecting it, the bank having refused to pay it without the indorsement of Berger’s administrator. The certificate had been found among the papers of Lewis Chrisner by his administratrix. Chrisner died in Belle-ville,. Illinois, May 6, 1867. His administratrix delivered the papers to the defendant for the purpose of collection. How it came among Chrisner’s papers in no way appeared, nor was there any testimony tending to throw any light upon the question of its ownership beyond what appears upon its face, and the fact of its possession by Chrisner. The plaintiff demanded possession of it as belonging to the'estate of Berger; but the defendant refused to surrender the possession, claiming to hold the certificate as the property of Chrisner’s estate. Upon this refusal the present proceedings were instituted.

If tlie title and ownership of the certificate and the fund it represented were in the plaintiff, as Berger’s administrator, at the time of the demand, the defendant’s subsequent possession, in opposition and hostility to the plaintiff’s right, was, in the sense of the statute, unlawful, and warranted this suit. The real and substantial question for consideration, therefore, is this: Whose was that certificate of deposit? Was the title in the administrator of Berger, or was it in the administratrix of Chrisner ?

The certificate itself establishes beyond controversy the fact that Berger was its original owner; that he deposited the fund, and, as evidence of his title, took a certificate of deposit payable to his own order. His title thus acquired must be presumed to continue until a divestment of it is shown; and a mere manual delivery of the paper without indorsement, and unaccompanied with evidence of a consideration paid, would not of itself pass the title. Even in case of personal chattels, as distinguished from choses in action, the presumption of ownership is with the party once shown to have had the title, until an alienation is shown; and the party relying on the fact of such alienation must prove it. So it was decided in Magee v. Scott, 9 Cush. 150, and that decision expresses the recognized doctrine on this subject. In commenting upon the facts of that case, Shaw, C. J., says: “ It is to be regretted that the facts showing the relation of the parties and the circumstances under which the goods admitted to have been the property of the plaintiff came into the possession of the defendant, are not stated, in order to show the application of the rule of laAV laid down by the court. Such circumstances will usually indicate what was the nature and character of such change of possession, whether in consequence of a sale or temporary loan, or how. The plaintiff is proved to be the owner of the property, and the right of property will continue until a change proved, as by sale, lien, or voluntary loan. Whoever relies on such change must prove it; the proof lies on him. All that appears in the present case is that the property came into the possession of the defendant, with the plaintiff’s consent. How? On what trust or contract? This does not appear.” And it was decided accordingly that the presumption of title in the plaintiff, founded on his original ownership, continued and prevailed over any presumption of title in the defendant arising out of his naked, unexplained possession.

The principle involved in that decision, applied to the facts of the present litigation, is decisive of the issue. The same obscurity hangs over Chrisner’s possession of the certificate that hung over the defendant’s possession of the personal property forming the subject of contention in Magee v. Scott.

Why did he have it? How? On what trust or contract? None of these questions are answered. There is nothing but the naked, unexplained possession to justify the pretensions of the Chrisner estate to ownership. If the fact of once having been the owner of personal chattels raises the presumption of a continued title, as in Magee v. Scott, how decisive should that presumption be in a case like the present, when the paper in dispute points out and designates the plaintiff’s intestate as being the true owner, and having upon it no mark or sign suggestive of a change of title.

I have examined all the accessible authorities cited in the brief of the defendant’s counsel, and I find that not one of them asserts the doctrine that the possession of an unindorsed negotiable note, bill, or certificate of deposit, payable to the order of the payee therein named, is prima facie evidence of title in the holder as against the payee named in the body of the instrument ; the holder furnishing no extrinsic evidence of his equitable title or interest. I apprehend no such case can be found. The Missouri cases referred to raise questions of practice, and the decisions at most have but a remote bearing upon the present inquiry.

Possession is prima facie evidence of title when paper is made payable to bearer, as bank notes; or where, if payable to order, the paper has once been properly indorsed and put in circulation. The cases referred to by defendant’s counsel are mostly of this character, or concern personal chattels.

The remark in Parsons (2 Pars. Notes and Bills, 444), that the “mere possession of an unindorsed note is p.rima facie evidence of title in the holder,” is foundedon Parham v. Murphee, 16 Mart., La., 855, new series, yol. 4. Tbe point involved in that case bad reference to tbe authority of tbe plaintiff’s attorney to make tbe affidavit on wbicb a writ of attachment was sued out. It wras insisted that tbe possession of tbe note sued on, although unindorsed, was prima facie evidence that tbe attorney was the plaintiff’s agent or attorney in fact. Tbe court decided adversely to this claim.

Possession of unindorsed negotiable paper may well be received as prima facie evidence as against a stranger to tbe title ; but is tbe naked and unexplained possession of such paper prima facie evidence as against tbe payee therein named ? It does not, appear ever to have been so held, and we are not prepared to make a precedent of that character. Nor do we see any sound reason for doing so. But it is urged that tbe court committed error by reason of its non-action upon an instruction asked by the defendant at tbe conclusion of tbe plaintiff’s case, to tbe effect that the plaintiff was not entitled to r'ecover upon tbe proofs. Tbe record states that this instruction was neither given nor refused; but tbe record also shows that tbe trial proceeded and that tbe defendant put in bis evidence. Tbe action taken was a practical refusal of tbe instruction. The non-action of tbe court, in omitting to write a refusal upon tbe instruction, seems to have been the result of inadvertence, and not of intention. Tbe judgment was for tbe right party, and tbe defendant does not appear to have been injured by tbe error complained of. A reversal on that point is not, therefore, warranted. It is assumed in tbe brief of tbe defendant’s counsel that tbe certificate of deposit in question is subject to tbe control and jurisdiction of the Probate Court of St. Clair county, Illinois. Tbe record shows no such fact, and it is therefore unnecessary to consider whether tbe fact supposed is of any materiality or not.

Tbe views presented lead to an affirmance of tbe judgment, wbicb is directed.

Judge Bliss concurs. Judge Wagner absent.  