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§ 636. Nature of the action. This action, the form of which is fictitious, is in substance a remedy to recover the value of personal chattels, (a) wrongfully converted by another to his own use. To entitle the plaintiff to recover, two points are essential to be proved: (1) property in the plaintiff, (b) and a right of

1 Per Ld. Mansfield, 1 T. R. 56. See also 2 Saund. 47 a to 47 k, note (1).

(a) As this action is for the damage to When, however, the evidence offered personal property, it will not lie in general shows that real property has been severed for chattels attached to the realty in such from the realty, .- 6.9. crops which have a manner as to form part of it, or for fix. been reaped, - it will support an action tures ; and the question is often very close of trover. Freeman v. Underwood, 66 Me. whether chattels have become portion of 229; Forsyth v. Wells, 41 Pa. St. 291. the realty by being attached to it. Thus, So, trover will lie against the bona fide where the evidence showed that an engine purchaser of loads of earth wrongfully was affixed by large iron bolts running taken from the plaintiff's land, and without down into solid masonry foundations and any demand and refusal, although the secured by melted brimstone, and the defendant was ignorant of the trespass boiler was set on brick masonry and sur- when he converted the earth to his own rounded most of the way up by brickwork, use. Riley v. Boston Water Power Co., so that it could not be removed without 11 Cush. (Mass.) 11. tearing down some portion of the perma- A question of some difficulty arises nent building, it was held that these when buildings or fixtures are treated by things were not mere chattels and that the owner as personalty. Thus, if A erects trover would not lie for taking them away. buildings on land of B, and A ard B agree Raddin v. Arnold, 116 Mass. 270. together that the buildings shall not be

So, where one sued for the conversion come part of the realty, but remain the of a number of railroad ties, and the evi- personal property of A, these buildings are dence was that the ties had come into the personalty as to all buyers who have notice possession of the defendants, already placed of this agreement, but realty, as to bona in the bed of the roadway and ballasted, it fide purchasers who have not had such nowas held that the evidence would not sup- tice. Hunt v. Bay State Iron Co., 97 Mass. port the action. Detroit, &c. R. R. Co. v. 279 ; Hartwell v. Kelly, 117 Mass. 235. Busch, 43 Mich. 571; Woodruff v. Adams, If, then, the owner of the land sells the 37 Conn. 233.

land to such an innocent purchaser, the So, where it was proved that one bought buildings will pass by that sale and a water-mill with the water-wheels at the owner of the land will be liable to the tached to the building, and the flume was owner of the buildings in trover for conbuilt up around them in such a way as to version. Dolliver v. Ela, 128 Mass. 557. prevent their being removed without ma- (b) The plaintiff need not set out his terial injury to the building, the evidence title with more definiteness than that he was considered insufficient to support an was lawfully possessed of” the goods, action of trover. Knowlton v. Johnson, and he may offer evidence of any kind of 37 Mich. 47. And to the general effect that title, general or special, under this declartrover will not lie for fixtures which are ation. Thus, Cooley, J., in Harvey v. part of the realty are, Morrison v. Berry, 42 McAdams, 32 Mich. 472, says, “ The obMich. 389; Pierce v. Goddard, 22 Pick. jection to the admission in evidence of the (Mass.) 559; Fryatt v. Sullivan Company, chattel mortgage under which the plaintiff's 5 Hill (N. Y.), 116.

claimed the property, has no force. The

possession at the time of the conversion; and (2) a conversion of the thing by the defendant to his own use. Whether the defendant originally came to the possession of the thing by right or by wrong is not material. The plaintiff should also be prepared to prove the value of the goods at the time and place of the conversion; though this is not essential to the maintenance of the action.

§ 637. Plaintiff's interest. (1.) The property in the plaintiff may be either general and absolute, or only special ; the latter of these interests being sufficient for the purpose. And where the plaintiff has a special property, he may maintain this action against even the general owner, if he wrongfully deprives him of the possession. Special property, in a strict sense, may be said to consist in the lawful custody of the goods, with a right of detention against the general owner; 3 but a lower degree of

1 Webb v. Fox, 7 T. R. 398, per Lawrence, J.
? Roberts v. Wyatt, 2 Taunt. 268 ; Spoor v. Holland, 8 Wend. 445.

3 The nature of special property is thus discussed by Mr. Justice Story. "What is meant by a special property in a thing? Does it mean a qualified right or interest in the thing, a jus in re, or a right annexed to the thing? Or does it mean merely a lawful right of custody or possession of the thing, which constitutes a sufficient title to maintain that possession against wrong-doers by action or otherwise ? If the latter be its true signification, it is little more than a dispute about terms; as all persons will now admit, that every bailee, even under a naked bailment from the owner, and every rightful possessor by act or operation of law, has in this sense a special property in the thing. But this certainly is not the sense in which the phrase is ordinarily understood. When we speak of a person's having property in a thing, we mean that he has some fixed interest in it (jus in re), or some fixed right attached to it, either equitable or legal ; and when we speak of a special property in a thing, we mean some special fixed interest or right therein, distinct from, and subordinate to, the absolute property or interest of the general owner. Thus, for example, if goods are pledged for a debt, we say that the pledgee has a special property therein ; for he has a qualified interest in the thing, coextensive with his debt, as owner pro tanto, So we say, that artificers and workmen, who work on or repair a chattel, and warehousemen, and wharfingers, and factors, and carriers, have a special property in the chattel confided to them for hire, for the particular purpose of their vocation, because they have a lien thereon for the amount of the hire due to them, and a rightful possession in virtue of that lien, even against the general owner, which he cannot displace without discharging the lien. So the sheriff, who has lawfully seized goods on an execution, may in this sense be said, without, perhaps, straining the propriety of language, to have a special property in the goods, although, more correctly speaking, the goods should be deemed to be in the custody of the law, and his possession a lawful possession, binding the property for the purposes of the execution against the general owner, as well as against wrong-doers. But it seems a confusion of all distinctions to say that a naked bailee, such as a depositary,

ground of it was that the declaration acquiring title to the goods, and states his counted on a conversion of the plaintiff's title to be a special one, e. g. a lien for property, without setting out the nature of repairs furnished a domestic vessel, he will their interest. But no declaration in tro. be held by this self-imposed limitation ver undertakes to notify the defendant of and will be obliged to prove his title just the precise nature of the plaintiff's title or as it is stated. Gregory Point Marine Ry. what are evidences of it." But if he Co. v. Selleck, 43 Conn. 320. chooses to limit himself to one method of

interest will sometimes suffice, against a stranger; for a mere wrong-doer is not permitted to question the title of a person in

has a special property when he has no more than the lawful custody or possession of the thing, without any vested interest therein, for which he can detain the property, even for a moment against the lawful owner. It might, with far more propriety, be stated, that a gratuitous borrower has a special property in the thing bailed to him, because, during the time of the bailment, he has a right to the use of the thing, and seems thus clothed with a temporary ownership for the purposes of the loan. Yet this has sometimes been a matter denied or doubted.

“Mr. Justice Blackstone has defined an absolute property to be, 'Where a man has solely and exclusively the right, and also the occupation, of any movable chattels, so that they cannot be transferred from him, or cease to be his, without his own act or default;' and qualified, limited, or special property to be such as is not in its nature permanent, but may sometimes subsist, and at other times not subsist.' And after illustrating this doctrine by cases of qualified property in animals feræ naturæ, and in the elements of tire, light, air, and water, he then proceeds : These kinds of qualifica. tion in property depend upon the peculiar circumstances of the subject-matter, which is not capable of being under the absolute dominion of any proprietor. But property may also be of a qualified or special nature, on account of the peculiar circumstances of the owner, when the thing itself is very capable of absolute ownership: as in case of bailment, or delivery of goods to another person for a particular use; as to a carrier to convey to London, to an innkeeper to secure in his inn, or the like. Here there is no absolute property in either the bailor or bailee, the person delivering, or him to whom it is delivered ; for the bailor hath only the right, and not the immediate possession ; the bailee hath the possession, and only a temporary right. But it is a qualified property in them both, and each of them is entitled to an action, in case the goods be damaged or taken away; the bailee, on account of his immediate possession ; the bailor, because the possession of the bailee is, immediately, his possession also. So also in case of goods pledged or pawned, upon condition, either to repay money or otherwise ; both the pledgor and pledgee have a qualified, but neither of them an absolute, property in them; the pledgor's property is conditional, and depends upon the performance of the condition of repayment, &c.; and so, too, is that of the pledgee, which depends upon its non-performance. The same may be said of goods distrained for rent, or other cause of distress ; which are in the nature of a pledge, and are not, at the first taking, the absolute property of either the distrainor, or the party distrained upon ; but may be redeemed, or else forfeited, by the subsequent conduct of the latter. But a servant who hath the care of his master's goods or chattels, as a butler of plate, a shepherd of sheep, and the like, hath not any property or possession, either absolute or qualified, but only a mere charge or oversight.' The cases here put by the learned Commentator, of qualified property, are clearly cases where the bailee has an interest or lien in rem. Mr. Justice Lawrence, on one occasion, said : 'Absolute property is, where one, having the possession of chattels, has also an exclusive right to enjoy them, and which can only be defeated by some act of his own. Special property is where he who has the possession holds them subject to the claims of other persons. There may be special property in various instances. There may be special property without possession ; or there may be special property, arising simply out of a lawful possession, and which ceases when the true owner appears. Such was the case of Armory v. Delamirie.'

“Now, with reference to the case in judgment, the language of the learned judge may be strictly correct; for it is by no means clear that the bankrupt had not an absolute property in the chattels, good against all the world, until his assignees asserted some title to it. The case cited of Armory v. Delamirie, was the case of goods coming to the party's possession by finding, where he might justly be said to be entitled to it, as well as possessed of it, as absolute owner, against all the world, until the rightful owner appeared and claimed it; and, if it was never claimed, his title as finder remained absolute. The case of a naked depositary does not seem to have been here presented to the mind of the learned judge. Indeed, there is no small refinement and subtilty in suggesting that a person, lawfully in possession of a thing, has, at the same time, a special property therein against strangers, and no property at all against the true owner. What sort of special property is that which has no existence against the owner of the thing, and yet, at the same time, has an existence against other persons ? Can there be property and no property at the same time? If the language were, that,

the actual possession and custody of the goods, whose possession he has wrongfully invaded. The naked possession of goods, with claim of right, is sufficient evidence of title against one who shows no better right. (a) Hence the sheriff, who has attached goods, may maintain this action against one who takes them from his possession, or from that of his bailee for mere custody.? (6)

when a party has a right of possession, that right cannot lawfully be violated by mere wrong-doers; but, if violated, it may be redressed by an action of trespass or trover, it would be intelligible. If the language were, that a person may have a present temporary or defeasible property in a thing, subject to be devested by the subsequent claim of the rightful owner under his paramount title (such as in the case of the finder of chattels), or a temporary property not special, which is to become absolute, or extinguished, by future events (such as the possession of an abstract of the title of the vendor by the vendee, under a contract for a sale and conveyance of real estate), there would be little difficulty in comprehending the nature and quality of the right as a jus in re. It would be a present fixed right of property, subject to be devested or destroyed by matters in futuro. In short, it would be a defeasible but vested interest in rem. But in the face of a naked deposit, by the very theory of the contract, the bailor never means to part for a moment with his right of property, either generally or specially, but solely with his present possession of it; and the undertaking of the bailee is not to restore any right of property, but the mere possession, to the bailor. It is this change of possession which constitutes the known distinction between the custody of a bailee and that of a mere domestic servant; for, in the latter case, there is no change whatever of possession of the goods, but the possession remains in the master, and the servant has but a charge, or oversight; whereas, in the case of a bailee, there is a positive change of possession. The true description of the right conferred on a naked bailee is that which Mr. Justice Blackstone, in the passage before cited, calls a “possessory interest,' or right of possession, in contradistinction to a general or special property.' See Story on Bailments, $ 93 g, h, i.

1 Sutton v. Buck, 2 Taunt. 302 ; Armory v. Delamirie, i Str. 505; Burton v. Hughes, 2 Bing. 173 ; Giles v. Grover, 6 Bligh, 277 ; Story on Bailments, $ 93, d, e, f; Duncan v. Spear, 11 Wend. 54 ; Faulkner v. Brown, 13 Wend. 63.

2 Wilbraham v. Snow, 2 Saund. 47; Story on Bailments, $ 93, e, f; $S 132–135 ; Brownell v. Manchester, i Pick. 232 ; Badlam v. Tucker, Id. 389; Lathrop v. Blake, 23 N. H. 46. Whether the sheriff's bailee for safe-keeping can maintain trover, is a point upon which the decisions are not uniform. See Story on Bailments, $ 133; Ludden v. Leavitt, 9 Mass. 104 ; Poole v. Symonds, 1 N. H. 289; Odiorne v. Colley 2 N. H. 66.

(a) Derby v. Gallup, 5 Minn.. 119 ; one makes it unnecessary for the other Burke v. Savage, 13 Allen (Mass.), 408. party to offer to perform the other. Adams See also ante, $ 561.

V. Clark, 9 Cush. (Mass.) 215. The lessee (b) The consignee of goods who is of a horse may, in trover, recover of the ready to pay freight on having the goods owner damages for the loss of the use of delivered to him may maintain trover the horse by the act of the owner, during against the carriers or their agents, who, a portion of the time of the bailment. having no claim on the goods for anything Hickok v. Buck, 22 Vt. 149. besides the freight, refuse to deliver them A father put certain property into the unless a further sum is first paid ; the possession of his son to enable him to earn consignee in such case is not bound to a livelihood, without any stipulation as to make any tender to those in possession the length of time that the son should of the goods, and their refusal to deliver keep the property, and reserving the right the goods is evidence of a conversion ; for to take it away and sell it, whenever he the payment of freight, for the carriage should be put to any expense about it, of the goods being an act which need not A portion of the property, after it had be performed until the delivery of the been for some time in the possession and goods, the two acts should be concurrent, use of the son, was attached as property and the refusal of one party to perform of the son, and it was held that the father

§ 638. Title by purchase. Where the plaintiff claims title to goods under a sale, and a question is made as to the time when the property passed, it will be material for him to prove that everything that the seller had to do was already done, and that nothing remained to be done on his own part but to take away the specific goods. They must have been weighed or measured, and specifically designated and set apart by the vendor, subject to his control; the vendor remaining, at most, but a mere bailee. If they were sold at auction, the property passes to the vendee, although the goods were not to be delivered to him until the auctioneer had paid the duties to the government; or although they were to be kept by the auctioneer as a warehouseman for a stipulated time. If, before the terms of sale are complied with, the vendor's servant delivers them to the vendee by mistake, no property passes. Nor does any property pass by a verbal contract of sale, which the Statute of Frauds requires to be in writing. If a specific article, such as a ship, for example, is to be built, and the price is to be paid by instalments as the work advances, the payment of the instalments, as they fall due, vests the property of the ship in the vendee ; but if the contract is general, without instalments, it is otherwise. But though the property thus passes by the contract of sale, in the manner above stated, yet by rescinding the contract the property of the vendee is devested, and the vendor is remitted to his former right.6 If the sale is fraudulent, or illegal, or if the goods were obtained by false pretences, or were stolen and sold by the thief to an innocent purchaser, no property passes.? (a)

1 Tarling v. Baxter, 6 B. & C. 360 ; Bloxam v. Saunders, 4 B. & C. 948 ; Simmons 0. Swift, 5 B. & C. 857.

2 Hind v. Whitehouse, 7 East, 558, 571 ; Philimore v. Barry, 1 Campb. 513 ; Simmons v. Anderson, 7 Rich. (S. C.) 67.

8 Bishop v. Shillito, 2 B. & Ald. 329, n. (a), per Bayley, J. And see Brandt v. Bowlby, 2 B. & Ad. 932.

4 Bloxsome v. Williams, 3 B. & C. 234.

5 Woods v. Russell, 5 B. & Ald. 942; Clarke v. Spence, 4 Ad. & El. 448 ; Goss v. Quinton, 3 M. & G. 825 ; Bishop v. Crawshay, 3 B. & C. 419; Mucklow v. Mangles, 1 Taunt. 318 ; Angier v. Taunton, &c. Co., 1 Gray, 621.

6 Pattison v. Robinson, 5 M. & S. 105 ; supra, § 615.

?. Wilkinson v. King, 2 Campb. 335 ; Noble v. Adams, 7 Taunt. 59 ; Packer v. Gillies, 2 Campb. 336 n; Peer v. Humphrey, 2 Ad. & El. 495.

could maintain trover against the attach- (N. Y.) 313 ; Ladd v. Moore, 3 Sandf. ing officer. Morgan v. Ide, 8 Cush. Sup. Ct. 589, and see post, $ 642. If an (Mass.) 423. See also Bryant v. Clifford, illegal and void contract of sale is so fully 13 Met. (Mass.) 138.

carried out that a demand connected with (a) Decker 0. Matthews, 2 Kernan it is capable of being enforced at law VOL. II.


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