¶1We will consider this case upon the assumption that the charge prayed was pertinent to, and suggested by, the the facts proved. The questions then are,r did the sale of the slave by Mrs. Tillman to the plaintiff vest the title in him, and if it did not, can the defendant avail himself of its invalidity;?
¶2In Weir v. Davis and Humphries, 4 Ala. Rep. 442, it was decided, that an administrator is not authorized to sell the personal estate of the intestate at private sale, and the purchaser under such circumstances does not acquire a valid title. But it was said, that although the title of the estate is not divested by the unauthorized sale, yet it does not follow that a creditor can subject the property to sale under execution.
¶3*4607 To entitle the plaintiff to recover in an action of detinue, /he must prove either a general or special property in the chattel and a right to the immediate possession. A bailee may maintain detinue or trover against a stranger who takes the goods out of his possession; and this whether the bailment be general or special, gratuitous or for a reward. So may a factor or other consignee, pawnee or trustee. [1 Ld. Raym. Rep. 276; 2 Bing. Rep. 173; 2 Taunt. Rep. 302; 1 B. & A. 39; 1 Saund. Pl. & Ev. 435; 2 Stark. Ev. 493, 494.] In the citation from Saunders on Pleading and Evidence, it is said, that the proof which establishes a right of property in #the plaintiff, is similar in trover and detinue; and in respect to the former it is laid down, that in general, possession of a chattel is prima facie evidence of property in the possessor; but if the plaintiff has never had possesion of the chattel, or if the contest be not with a mere stranger, but with one who will succeed in his proof of title, unless the plaintiff can prove a better, it is necessary for the latter to resort to strict evidence of title. [3 Stark. Ev. 1483.] If therefore the action be brought against a wrong doer, the mere fact of possession by the plaintiff, is usually sufficient evidence of title, although the plaintiff claim under a title which is defective. For the possession of property is prima facie evidence of ownership. [Id. 1488; 2 Saund. on Pl. and Ev. 878-9; 2 Miss. R. 151 ; 1 Dana Rep. 110.] If the possession of goods be tortiously taken, the plaintiff may waive the wrongful taking, and maintain detinue. [1 Miss. Rep. 749; 2 A. K. Marsh. Rep. 268; 4 Ala. Rep. 669.]
¶4• Although Mrs. Tillman, as the administrator of her husband’s estate, was not authorized to sell the slave in question at private sale, and without an order directing his sale, yet the delivery of possession invested the plaintiff with the right of retention against every person who could not show a superior title. His purchase and possession gave him the semblance of title, defective it is true, but quite sufficient as against a wrong-doer. Because his purchase was ineffectual to pass the absolute right, the possession which was yielded to him, cannot be considered as so entirely void, that it may be divested at pleasure by one who makes no pretence of *461title. The plaintiff, we think, may be regarded as favorably as a gratuitous or genera] bailee ; and as these may maintain detinue upon their possession and liability over, may he not invoke the same reasons in favor of his right to sue ?
¶5The evidence recited in the bill of exceptions clearly indicates that the defendant was a mere trespasser — the fact that the plaintiff was his debtor cannot place him in any other predicament. For however this may be, no man can, without the agency of the law, seize the property of his debtor for the purpose of collecting or enforcing a payment of his debt. It follows that the circuit court, in disallowing the defence, ruled the law correctly — its judgment is consequently affirmed.