delivebbd the ofinioji oe the court:
The black mare, for the recovery of which this action of replevin was brought by the appellant against the appellee, was indisputably the appellant’s property, and was stolen from his possession, and somehow, unexplained, came into the possession of a Federal ‘Quarter-Master at Lexington, Kentucky, who, on the 3d day of June, 1865, branded and sold her as the property of the United States.
If the Quarter-Master’s possession was acquired by purchase from the thief, or his alienee, the title of the purchaser was no better than that of the vendor. Even the Government could not thus divest the owner of his property without his consent or fault.
Had the Government impressed the mare for military service, and paid the thief or his transferree her value, it would have been liable to the owner for the mare or the value; but there is no proof of any such acquisition. Nor will the crisis •and the branding only, on the day of sale, authorize such a presumption.
But if the Government had, In any way, acquired a good title against the appellant, the fact being súsceptible of easy proof, ought to have been established by other and much stronger testimony than that of the possession, the brand, and the sale by the Quarter-Master, which could not sufficiently negative the appellant’s superior title, manifested • by the undisputed proof that the mare was his, and whilst his, was stolen from him.
Yet the circuit court refused instructions to that effect, and • then instructed the jury, that if they should find from the evidence that the mare had been “ appropriated ” to military use by the Government, and had been inspected, condemned, and branded, and sold as the property of the United States, they must find for the appellant — as they therefore did.
There was no proof of any appropriation to military use; nor was there any proof that any agent of the Government had been in the possession of the mare three days before the branding and sale. But, waiving this objection to the instruc*562tion as abstract and misleading, it was radically erroneous in the assumption that any such acts by the Government alone, without the owner’s consent, knowledge, or fault, divested him of his title, or could operate otherwise than as prima facie evidence of title in the Government in the absence of any countervailing testimony. It was certainly not sufficient per se to repel the inference of still subsisting title in- the appellant, necessarily arising from the uncontroverted proof that the mare was his property,, and -was stolen from him only a short time before the branding.
For the error in giving this instruction to the jury, and also in refusing the counter instructions asked by the appellant, the judgment overruling the motion for a new trial was erroneous.
Wherefore, the judgment is reversed, and the cause remanded for a new trial.