July 11, 1928.

The opinion of the Court was delivered by

MR. JUSTICE COTHRAN.

The only matter which we shall discuss in this case is the assignment of error to that part of the Circuit Judge's charge in reference to the burden of proof. This requires a somewhat detailed statement.

The action is in claim and delivery for an automobile, instituted in December, 1919; upon a former trial a verdict was directed in favor of the plaintiff; upon appeal that judgment was reversed and a new trial ordered ( 118 S.C. 449; 110 S.E., 676); thereafter the plaintiff died and his wife, Fannie Jackson, as administratrix of his estate, was substituted as plaintiff. The case was tried before his Honor, Judge Townsend, and a jury at March term, 1926, resulting in a verdict for the plaintiff for the value of the car $250 and $500 damages. The defendant has appealed.

The issue between the parties plainly appears from the complaint and answer: It is alleged in the complaint that in November, 1919, the intestate, D.A. Jackson, was the owner of a certain described automobile; that at the time of the commencement of the action he was the owner and entitled to the possession of the car; that in November, 1919, he parted with the possession of the car to the defendant under these circumstances; "that he (the defendant) represented himself as the owner of a tract of real estate which he by parol offered to sell to plaintiff, and to take the automobile on the purchase price thereof, and induced the plaintiff (D.A. Jackson) to allow him to try out the said automobile"; that the defendant "converted it to his own use and benefit and refuses to deliver the same to plaintiff, notwithstanding due demand has been made therefor." (We read between the lines, what is not distinctly averred, that the offer of the defendant to sell the land was not accepted by D.A. Jackson, who thereby became entitled to a return of the car committed by him to the defendant upon the condition above stated.)

The answer of the defendant contains a general denial of the plaintiff's title and right to possession, and an explanation of the circumstances under which the defendant acquired possession of the car as follows: That he and the plaintiff entered into a contract for the sale and purchase of a certain tract of land, and that the automobile was delivered by the plaintiff to the defendant as part payment of the purchase price of the land; that without legal excuse the plaintiff refused to comply with said contract, which the defendant stood ready and willing to do, and was not entitled to a return of the automobile which he had delivered under these circumstances.

The plaintiff, as shown, contended that he had never consummated the alleged contract and that the automobile was not to be considered as a payment thereon, unless the contract was duly closed and the defendant, after trying it, was satisfied with the automobile. The defendant on the other hand, contended that the oral contract for the sale of the land was actually completed, and that the car was delivered as part payment of the purchase price.

His Honor, the Circuit Judge, very correctly stated the law to the jury, in conformity with the decision of this Court upon the former appeal:

"The law is that, if a trade for land is agreed upon, and the purchaser makes a part payment upon the purchase money, and the seller is able, ready, and willing to carry out or perform the contract, the purchaser cannot recover back the amount paid by him. If the jury is satisfied from the evidence that the automobile described in the complaint was delivered by Daniel A. Jackson to the defendant as an agreed price in part payment for land under a contract which had been made and agreed to by both defendant and Daniel A. Jackson, and with intent to pass title to the automobile to defendant, and that defendant is able, ready, and willing to carry out and perform such contract, then this action of claim and delivery would not lie, and your verdict would be for defendant, if you so found."

As to the matter of the burden of proof, his Honor charged the jury as follows:

"The burden is upon the defendant to prove by the greater weight of the evidence that such contract or trade in all its terms was agreed upon by both parties, and that the automobile was turned over to defendant as part payment in the trade, and that he (the defendant) was ready, able, and willing to convey the land and carry out the trade. If defendant proves such facts, your verdict should be in favor of defendant in the form which I have stated."

And:

" * * * Where the defendant admits that the plaintiff originally owned the automobile, and claims to have acquired the automobile from the plaintiff or plaintiff's intestate under a contract or agreement with intestate, then in this case the burden of proof as to showing that defendant was entitled to hold it under that trade would be upon the defendant."

In our opinion his Honor was in error in so charging and that the error demands a reversal of the judgment.

While it is not controlling, it is of interest to note that manifestly counsel for the plaintiff conceived that the burden was upon them; they assumed it by offering in chief the testimony of the plaintiff (taken at the former trial), of his son Grover Jackson, of the outside witnesses New, Riley, Dubose, and Berkeley, tending to establish the facts that no trade had been consummated and that the defendant was to try out the car and return it in good shape if the negotiations should fall through.

In reply the defendant offered evidence to the effect that Jackson had declared to Wharton and Moyer that he had traded with defendant; that he was seeking the services of a surveyor to run the lines; that he was showing his son-in-law, who was expected to work it over the land; that he applied to the bank for a loan with which to pay for the land; that he was offering $100 to be let out of the trade; and the letter which he sent to the defendant, dated November 10, 1919 (written by his counsel, Mr. Henderson), "disaffirming and rescinding" "the understanding with you to purchase a tract of land from you for $12,000. * * * I left with you my automobile worth at least $1,000 on the understanding."

The issue of fact whether the trade was actually consummated and the car delivered to the defendant as part payment of the purchase price was clearly one for the jury; it was the turning point in the case; and the question upon whom the burden rested was one of supreme importance. Was it upon the plaintiff to show that the delivery of the car was conditional upon the consummation of the trade and the satisfaction of the defendant with the car, or upon the defendant to show that the trade had been consummated orally and that the car was delivered as part payment of the agreed purchase price?

As is said in 22 C.J., 69:

"The rule as to the burden of proof is important and indispensable in the administration of justice, and constitutes a substantial right of the party upon whose adversary the burden rests. It should therefore be jealously guarded and rigidly enforced by the Courts."

The view of his Honor, the Circuit Judge, was that, as at one time the title to the car was admittedly in the plaintiff, the burden was cast upon the defendant to show that it had passed out of the plaintiff into the defendant; in other words, that, although the plaintiff may come into court alleging that at the time of the commencement of the action he had the legal title to the chattel and is entitled to the immediate possession of it, he may, by showing simply that at a time prior thereto he did have the legal title and was entitled to the possession, cast the burden upon the defendant to prove a negative by showing that at the time of the commencement of the action the plaintiff did not have the legal title, but that it was in him (the defendant). We do not think that this is the law.

The defendant's answer contains a general denial and also a specific statement of the grounds supporting the defendant's claim of title.

In 23 R.C.L., 932, it is said:

"It is usually held that the general denial in an action of replevin puts in issue not only the plaintiff's right to possession, but his title to the property replevied. Accordingly, the defendant may show under that plea that the plaintiff is not the owner of the property replevied, by showing that he himself is the owner, or that the title is in a third person."

And at page 934:

"Generally speaking, in an action of replevin, the right to the possession of the property at the time suit is brought is the only matter in controversy, and the only question that can be tried and determined therein. * * * The burden of proof is upon the plaintiff in replevin to show that at the time of the commencement of the action he was the owner, that he was entitled to the immediate possession of the property, and that the defendant wrongfully detains it. And this burden does not change where the answer pleads property in the defendants." (Emphasis added.)

The distinction is between affirmative defenses, which must be alleged, as to which the defendant assumes the burden of proof, and defenses which are available to the defendant under a general denial, as to which he does not assume that burden. We do not think that it can be questioned that, under the pleadings in this case, the defendant could avail himself of the defense that the plaintiff had parted with his title. It was available to him both under the general denial and under the specification of his claim which did not constitute an affirmative defense.

The burden is on a party pleading a fact to prove it. McCall v. Alexander, 81 S.C. 131; 61 S.E., 1106. Heiden v. R. Co., 84 S.C. 117; 65 S.E., 987. Scott v. Ins. Co., 102 S.C. 115; 86 S.E., 484. Newton v. Bennett, 111 S.C. 1; 96 S.E., 620.

In Henderson v. Irby, 1 Speers, 43, the Court said:

"The title of the plaintiff to the thing in question, his right to sue upon the particular cause of action set forth, must be made out, at least prima facie, by himself, and may always be inquired into, and his proof rebutted, on the part of the defendant."

In Turner v. Cool, 23 Ind., 56; 85 Am. Dec., 449, it was held, quoting syllabus:

"Burden of proof is upon plaintiff in replevin where the answer sets up, in substance, property in the defendant."

It can make no difference, in principle, whether the defendant claims from a stranger or from the plaintiff himself. It constitutes a denial of the allegation that the plaintiff, at the time of the commencement of the action, owned the title to the property; this necessarily put him to the proof.

In Marsh v. Pier, 4 Rawle (Pa.), 273; 26 Am. Dec., 131, the Court said:

"Although in most cases where the defendant pleads merely an affirmative plea, he is, by the course of practice, entitled to the conclusion, because, generally, it throws upon him the onus probandi; yet the plea of property, as I apprehend, does not produce this effect in the action of replevin. The plaintiff, I think, must, notwithstanding, first prove that he has a right to maintain his writ of replevin, by showing that he has either an absolute or special property in himself."

The Court quotes from Clemson v. Davidson, 5 Bin (Pa.), 399:

"It is true that, notwithstanding his (the defendant's) plea, it is necessary for Clemson (the plaintiff) to show property in himself."

In the case of Robb v. Dobrinski, 14 Okla. 563; 78 P., 101; 1 Ann. Cas., 981, the plaintiff sued in claim and delivery for a lot of wheat, making the usual allegations of title and right to possession. The defendant answered by a general denial. The defendant offered evidence tending to show that the wheat was included in a purchase of a farm by him from the plaintiff. The plaintiff had a verdict. Upon appeal the defendant assigned error in the following charge:

"You are instructed that the burden of proof is upon defendants to show by a preponderance of the evidence that defendant Haffner obtained possession of plaintiff's wheat and farm with the full knowledge and consent of plaintiff, and that said possession was taken because of a contract honestly entered into between plaintiff and defendant Haffner, and that said Haffner did not, in plaintiff's absence, wrongfully take possession of said farm and wheat. If defendants do not show this by a preponderance of the testimony, you should find for the plaintiff and against the defendants."

In reversing the judgment for error in this charge, the Court said:

"Under our Code the gist of the action of replevin is the wrongful detention of the property in dispute. And in this case it was necessary for the plaintiff, in order to maintain his action, not only to plead, but to prove, the following facts: (1) That he was the owner of, or had a special interest, in, the wheat in controversy; (2) that he was entitled to the immediate possession thereof; (3) that defendants wrongfully detained the same. And the burden of proof was on the plaintiff to sustain these material allegations of his petition. In this instruction the Court put the burden of proof, in effect, on the defendants to show that Haffner had not wrongfully taken possession of the wheat. It was incumbent upon the plaintiff to prove by a fair preponderance of the evidence that he was not only the owner of the wheat, but that he was entitled to the immediate possession thereof, and that the same was wrongfully taken and detained from him by the defendants, or some one of them. The fact that Haffner claimed to have purchased the wheat from Dobrinski in connection with the farm did not put the burden of proof upon him or the other defendants."

"In replevin for a horse claimed by defendant under a sale from the one who had purchased from plaintiff, plaintiff claiming that the sale by him had been conditional, with reservation of title until payments, the burden of proof of showing such fact was on the plaintiff." Schenck v. Griffith, 74 Ark. 557; 86 S.W. 850.

"In replevin, where the right to recover is predicated on plaintiff's purchase of the goods and delivery to defendant, a charge is erroneous which places on defendant the burden of showing that he purchased the goods." Butler v. Estrella Raisin Co., 124 Cal., 239; 56 P., 1040.

"In replevin, the plea of property in the defendant imposes upon the plaintiff the burden of proving property in himself." Noble v. Epperly, 6 Ind., 414.

"Ownership or right of possession in plaintiff in replevin and possession held by defendant do not change the burden of proof, which remains with plaintiff to establish that defendant wrongfully holds possession of the property." Morgan v. Jackson, 32 Ind. App. 169, 69 N.E. 410.

"In replevin, where plaintiff claims absolute ownership and right to immediate possession, and defendant's answer is a general denial, plaintiff must establish his ownership and right to possession by competent evidence; and on failure so to do, the Court may direct verdict for defendant." Northwall v. Strong, 2 Neb. (Unof.), 699; 89 N.W., 767.

"Where a defendant in replevin admitted the plaintiff's title, but pleaded a special interest in himself, the burden of proving a right to the possession of the property and a wrongful taking or detention is still on the plaintiff; and until he has done so, defendant is not required to offer proofs of his special defense." Dodd v. Williams, 27 Wn., 89; 67 P., 352.

Under pleas of property in defendant and others, "the question to be determined is the right of the plaintiff to possession of the property, and upon this issue the plaintiff holds the affirmative of the case and must sustain his right by a preponderance of the evidence." Weber v. Huthmacher, 161 Ill. App. 261.

"Where plaintiff * * * alleges ownership, and the answer is a general denial, plaintiff has the burden of establishing by a preponderance of the evidence that she is entitled to the possession * * * and this burden does not shift to the defendant by his introduction of evidence * * * showing that defendant purchased the property from plaintiff's husband and that plaintiff * * * authorized or ratified the sale." Wylie v. Marinofsky, 201 Mass. 583; 88 N.E., 448.

"In claim and delivery, the plaintiff has the burden of proving title, though defendant also claims title by his answer." Frank v. Symons, 35 Mont., 56; 88 P., 561.

"Where one came into possession of property without trespassing on another's right of possession, the burden of proof to show title is on the latter." Campbell v. Brown, 146 Mo. App. 319; 130 S.W. 50.

"An affirmative plea of property in defendants amounts to no more than a denial of plaintiff's allegation of ownership, and does not cast on defendants the burden of proof as to such plea." Moore v. Marsh, 59 Wn., 151; 109 P., 606.

"In action to replevin horse, alleged to be unlawfully detained by defendant, where latter pleaded non cepit, and that horse was his own property, which he was ready to verify, plaintiff held to have burden of proving property in himself." Smith v. Deojay, 124 Me., 381; 130 A., 130.

"A plea of property in defendant casts the burden upon plaintiff of showing a general or special property in the article." Robinson v. Huschle, 233 Ill. App. 519.

"In replevin, where plaintiff averred title and right of possession in himself and a wrongful detention by defendant, and defendant denied the title and right of possession of plaintiff and averred that the title and right of possession was in it, and plaintiff joined issue, it was for plaintiff to prove title and right of possession." Security Corp. v. Whiting Co., 98 N.J. Law, 45; 118 A., 695.

"Defendant's plea of property in replevin case casts upon plaintiff the burden of establishing its right of property in the replevined article." Burrier v. Cunningham, 135 Md., 135; 108 A., 492.

"A plea of property by both parties in replevin puts in issue plaintiff's interest, and imposes upon it the burden of proving its right to the immediate and exclusive possession of all the property." Canadian Car Co. v. Pa. Co. (C.C. A.), 256 F., 339.

A very conclusive reason for reversing the rule declared by the Circuit Judge is that admittedly the defendant was in possession of the car at the time of the commencement of the action. This possession carried with it the presumption of title, which stood until the plaintiff succeeded in what he actually attempted to do, breaking it down.

In Thompson v. Chapman, 107 S.C. 461; 93 S.E., 142, quoting syllabus, it was held: "One in possession of personal property is presumably its owner." Reaffirmed in Simmons v. Stevens, 118 S.C. 342; 110 S.E., 798. See, also, Vanderbilt v. Chapman, 175 N.C. 11; 94 S.E., 703. Hannis v. Berkeley, 62 W. Va., 407; 59 S.E., 1054. Sutton v. Lyons, 156 N.C. 3; 72 S.E., 4. Saunders v. Greever, 85 Va., 252; 7 S.E., 391.

Judgment reversed; new trial ordered.

MESSRS. JUSTICES STABLER and CARTER concur.