In equal rights the condition of the possessor is the better : or, where the rights of the parties are equal, the claim of the actual possessor shall prevail.
It is a rule of law, that a plaintiff shall recover upon the strength of his own title, and not upon the weakness of his adversary's ; possession, as a prima facie right in the defendant, being sufficient to call for proof of an absolute right in the plaintiff. This maxim is adopted alike in equity as in law, and applies to real as well as personal property. It embraces the cases of fraudulent and illegal agreements, conveyances and transfers of property, and the rights of the parties thereunder and thereto, and as well where the parties are in pari delicto as in cequali jure, as is shown by the following maxims : — “ Melior est conditio possidentis, et rei, quam actoris;” “In pari delicto, potior est conditio possidentis, et . defendentis ;” and “ Bern domino, vel non domino, vendente duobus, in jure est potior traditione prior.”
In reference to this maxim, Lord Coke says : If lands holden in socage ; i.e., a tenure on certain service or rent other than knight service, or freehold ; be given to a man and the heirs of his body, and he dies, his heir under age, the next cousin on the part of the father, though he be the more worthy, shall not be preferred to the next cousin on the part of the mother, but such of them as first seised the heir shall have his custody. Also, if a man be seised of land holden in socage on the part of his father, and of other land holden in socage on the part of his mother, and dies, his issue being within age ; the next of kin of either side who first seises the body of the heir shall have him ; but the next of blood on the part of the father shall enter the lands on the part of the mother, and the next of kin on the part of the mother shall enter the lands on the part of the father.
The following cases may be given in further illustration. Where a plaintiff in an action for negligence has contributed to the injury complained of, he cannot recover ; as, where a man put a large sum of money, in some hay, into an old nail-bag, and delivered it to a common carrier, without notice of its contents, to carry to a banker ; or carelessly packed up and sent, without notice of the value, valuable or fragile articles, which were in consequence lost or destroyed ; the carrier in such cases was held not responsible, he not having been informed of the nature of the goods committed to his care, in order that he might take sufficient care of them. So, where a man signed several blank cheques and left them in the hands of his wife to be filled up when required, and she gave one of them to a clerk to fill up for 501. 2s. 3d., and the clerk filled it up in such a manner as that he could afterwards alter the amount to 350l. 2s. 3d., which he, after it had been signed and whilst on his way to the bank, did, and absconded with the money ; in such case the customer was held liable to bear the loss, it being caused by his own and his agent's negligence. For, in all such cases, “ In pari delicto melior est conditio possidentis, et rei quam actoris.” But con- tributory negligence on the part of the plaintiff will not prevent, him recovering damages unless it be such that, but for that negligence, the injury would not have been sustained ; nor, if the defendant might by care have avoided the consequences of the carelessness of the plaintiff.
Plowd. 296 ; 4 Inst. 180 ; Munt v. Stokes, 4 T. R. 564 ; Co. Litt. 88 ; Hob. 303, 109 ; Doct. & Stud. 9 ; Wing. Mas. Reg. 98, pi. 2, 3; Young v. Urote, 12 Moore, 484 ; Tuff a. Warman, 26 L. J. 263, C. P. ; Gibbon v. Paynton, 4 Burr. 2298 ; East India Co. v. Tritton, 3 B. & G. 289 ; Keele v. Wheeler, 8 Scott N. R. 333 ; Simpson v. Bloss, 7 Taunt, 246 ; Skaife v. Jackson, 3 B. & 0. 421.