January 26, 1942.
In replevin action by executor of former owner of property, wherein executor met initial burden of showing that property belonged to owner, the fact of gift by former owner to defendant became an "affirmative defense" and defendant had the burden of establishing it.
Every element requisite to constitute a gift must be shown, and when claim of gift is asserted after death of alleged donor, it must be sustained by clear and satisfactory proof.
Where alleged donee offered no testimony to meet burden of proving gift after alleged donor's death, claim of gift could not be aided by any presumption of gift based upon the mere fact of possession.
In replevin action by executor of former owner against one claiming as donee of personalty, evidence held not to establish gift by former owner.
APPEAL from the circuit court of Warren county, HON. R.B. ANDERSON, Judge.
Culkin, Laughlin Thames and R.M. Kelly, all of Vicksburg, for appellant.
The plaintiff in replevin, as in other civil actions, has the affirmative of the issue; he has the burden of proving by a preponderance of the evidence that he has the right to the immediate possession of the personal property and that the defendant in replevin wrongfully detains same. Likewise is it true, as in other civil actions, that when the plaintiff has met this burden imposed by law, by the introduction of sufficient competent evidence to show these necessary facts, and the defendant has in defense of this action set up some affirmative matter, the burden is then on the defendant to prove the affirmative matter. However, the burden of proof never shifts; the plaintiff in replevin must prove his case by a preponderance of the competent evidence, regardless of the defense of the defendant, before the defendant is required to offer proof of his defense.
23 R.C.L. 934; 54 C.J. 535, Sec. 236, p. 538, Sec. 238, p. 545, Sec. 250; Gorman v. Fitzgerald, 168 Miss. 532, 151 So. 726; Quarl v. Hucherson, 139 Miss. 356, 104 So. 148; Bell v. Smith, 155 Miss. 227, 124 So. 331; Johnson v. Sanders, 148 Miss. 472, 114 So. 334; Brunson v. Volunteer Carriage Co., 93 Miss. 792, 47 So. 377.
Under the declaration herein, before the defendant was required to offer any proof whatsoever, regardless of her defense, the law required the plaintiff to prove by a preponderence of the evidence that Mr. S.T. Woodson at the time of his death was "seized and possessed in full ownership" of the named personal property; that after his death Mrs. Stewart came into possession thereof and wrongfully claimed to be the owner of same and wrongfully detained the same from this executor, who was the duly qualified and acting executor of the estate of S.T. Woodson, deceased, and who was entitled to the immediate possession of this personal property.
Albert M. Bonnelli and Brunini Brunini, all of Vicksburg, for appellee.
A gift inter vivos is an affirmative defense, the burden of proof being upon the alleged beneficiary.
Appellee as executor of the estate of S.T. Woodson, deceased, brought suit in replevin against appellant to recover possession of a diamond ring and an automobile. To the allegation of the executor that these items were property belonging to the estate, the appellee set up as a defense that they had been given to her by the said Woodson before his death.
Testimony for the executor included a bill of sale to Woodson for the automobile dated one month prior to his death, also the quoted statement of appellee that her title to both items was derived from Woodson by gift. Appellant concedes that this property had belonged to Woodson and bases her claim and defense upon the validity of the alleged gift. She offered no evidence although the testimony for plaintiff upon the trial disclosed that she insisted that her claim could be substantiated by three witnesses.
Appellee met the initial burden of showing that the property belonged to Woodson, and unless his title thereto had been divested by gift the executor was entitled thereto. The fact of the gift became an affirmative defense and the burden of establishing same devolved upon appellant as the alleged donee. Stewart v. Graham, 93 Miss. 251, 46 So. 245; Jones v. Jones, 162 Miss. 501, 139 So. 873; Lamb v. Collins, Tex. Civ. App., 93 S.W.2d 490; 24 Am. Jur., Gifts, Sec. 115; 28 C.J. 670. Every element requisite to constitute a gift must be shown (Jones v. Jones, supra), and when such claim is asserted after the death of the alleged donor, it must be sustained by clear and satisfactory proof, 24 Am. Jur., Gifts, Sec. 133. Appellant offered no testimony to meet this burden and her claim cannot be aided by any presumption of gift based upon the mere fact of possession. Fouts v. Nance, 55 Okla. 266, 155 P. 610, L.R.A. 1916E, 283; Maxler v. Hawk, 233 Pa. 316, 82 A. 251, Ann. Cas. 1913B, 559; Haldeman v. Martin, 205 Iowa 302, 217 N.W. 851; Union Trust Savings Bank v. Tyler, 161 Mich. 561, 126 N.W. 713, 137 Am. St. Rep. 523; Yardum v. Evans, 120 Neb. 699, 235 N.W. 85; 24 Am. Jur., Gifts, Sec. 115; 28 C.J. 669.
At the conclusion of plaintiff's testimony, both sides rested their case and each requested a directed verdict. The trial court directed judgment for the plaintiff, appellee here. This was correct.