This case was, in its entirety, law and’facts, submitted, under an agreement between counsel, to the decision of Judge Yason, and is now before us as upon a motion for a new trial, which was refused.
In looking through the testimony in the record, we have all been deeply impressed that if the plaintiff had a right to recover, the amount of $4,950, with interest from 20th December, 1857, allowed by the Judge, is excessive and far beyond the amount for which defendant, if answerable, should account to the executor of Hargrove. As the case is sent *568/back for a new trial, we do not deem it advisable to go into the facts which have led us to the above conclusion.
We also unite in the opinion that the bill filed by the executor, after he had instituted his suit in trover, though it recited the action of trover, when dismissed by complainant, did not carry along with it the action pending at law.
But upon the testimony before us, a question arises which goes to the merits' of the action of trover. It is, whether plaintiff, the executor of Hargrove, can maintain any suit for the cattle, or for damages, in the face of a continued disclaimer of title by his testator, from the advance of money to purchase them with, to the day of his death ?
Judge Warner thinks the suit was maintainable upon the repeated admissions of Taylor that the cattle were Hargrove’s. Judge Walker declined to express any opinion.
I entertain a very strong conviction that it is a rule of universal application, that a plaintiff must recover upon the strength of his title, and that the files of no Court in the world will furnish a precedent of the recovery, by a sane, intelligent man, thoroughly informed of all the facts, of property which he says is not his, and over and over again, and uniformly, disclaims title to it. The testimony here shows that Taylor had married Hargrove’s favorite niece; that after Taylor’s house had been burnt, Hargrove urged him to remove from the county, promising “ to help him” to start in life again; that he did send him money by a witness, with directions that he, Taylor, should buy a stock of cattle for his family; that cattle were bought by Taylor with the money, and that at no time, from sending the money to his death, a space of eight years or more, did. he, in repeated conversations with Taylor arid other persons, and especially with Gen. Levi J. Knight, assert title, or claim any interest whatever, in the cattle in Irwin county, and that'Hargrove never went at any time to look after them, nor in any way exercised dominion over them. Is not the executor of Hargrove bound by these admissions and conduct of Hargrove ? The sayings and statements and acts of Taylor were evidently made in ignorance of the gift by Hargrove of the money to buy the cattle *569for liis, Taylor’s, family. Even if they are to have an effect upon Taylor’s rights of property in the cattle, they surely should not be permitted to deprive his wife and children of their rights. Whether the cattle are Taylor’s or his family’s, is a matter to be settled between them. They belong to the one or the other. It is, to me, very clear that Hargrove’s estate has no right to them.
Judgment reversed.