The first proposition we lay down is, that the plaintiff can, of course, bring his action in all cases of conversion of property without his consent, and this he may do, whether taken from his possession, or whether he has delivered it to his agent to keep for him, and it is taken out of the agent's possession by defendant.
We leave this proposition by simply referring to the following authorities: Thorp v. Burling, 11 John. 286; Holt v. Johnson , 14 Id. 425; Putnam v. Wyley , 8 Id. 432; 14 Id. 87, 406; 20 Id. 465; 1 Wend. 109; 2 Id. 475; 1 Chitty, 155; 1 Id. Pl. 160; 3 Black. Com. 148.
As to the first point relied upon by defendant, that possession will not entitle the plaintiff to recover, without further proof asto how he (plaintiff,) became possessed of such property, it is not a correct legal proposition, and consequently not supported by authority; the true rule being, that a mere naked possessor of property without right, may bring his action for such property; and evidence of his possession, either by himself or his agent, will be sufficient to maintain the action, possession being always prima facie evidence of ownership.
And to such a case, it would not be sufficient for defendant to set up property in a third party, unless such allegation should be followed by proof of a paramount title in such third party, and further proof, showing some right or claim to such property, derived by defendant from the true owner. The authorities are full, and without contradiction, upon this point. (See 11 Wend. 54; 16 Id. 562-71; 15 John. 160.)
JUDGES: Burnett, J., delivered the opinion of the Court. Terry, C. J., concurring.
OPINION
BURNETT, Judge
The only question in the case is, whether plaintiff, by his proof, made out a prima facie right to recover in the entire absence of any proof on the part of the defendant.
We think the proof ample to show title prima facie in plaintiff. Possession of personal property is prima facie evidence of ownership. (2 Cal. 373.) The possession of the servant is the possession of the master. (1 Cal. 161.)
In this case the plaintiff had possession for some considerable time before the seizure, and exercised dominion over the property.
Judgment affirmed.