iron had been delivered, and no bills had been taken out of circulation, the plaintiff stopped the further delivery, and brought trover for what had been delivered; it was held, that the action would lie (≈). If, upon an information of seizure, the goods be condemned, no action will lie for them. (Ante, p. 1303.) But if there be no condemnation, and the goods were not liable to be seized, trespass or trover will lie against the officer for them (a). If the vendor of a leasehold estate delivers the conveyance as an escrow to take effect on payment of the residue of the purchasemoney, the property in the title-deeds is so vested in the vendee, that the vendor obtaining possession of them and pawning them, confers on the pawnee no right to detain them after tender of the residue of the purchase-money (b). But a vendor of land, who has made an absolute conveyance of the legal estate to the vendee, has no lien on the title-deeds for the unpaid purchase-money (c). When property in land passes by a deed, the property in the deed passes with it (d). Thus the mortgagee in fee may sue a third party, with whom the mortgagor has deposited the title-deeds as a security for advances (e). An estate was conveyed in 1803, by J. B. to W. H., who, in 1812, conveyed it to A. H., and he sold it in 1826 to the plaintiff. The first vendor did not deliver up the title-deeds. In 1824 he was sued by A. H., the then owner of the estate, for the deeds, and a verdict was recovered against him, but the judgment was not docquetted. The first vendor absconded, and in 1825 obtained a sum of money as on a mortgage of the estate from one of the defendants, with whom he deposited the deeds. On trover brought in 1829, after demand and refusal; it was held, that the plaintiff, being the legal owner of the estate, might recover the deed from the mortgagee without tendering the mortgage-money (f). By a postnuptial contract, B. conveyed to plaintiffs, as trustees for his wife, property, the title-deeds of which he obtained from the trustees, and deposited with the defendants as a security for money advanced; it was held, that the plaintiffs were entitled to maintain trover for the deeds; for, upon the deposit, the defendant acquired no more than a right to go into a court of equity to compel a legal conveyance (g), and such right did not constitute the defendants purchasers within the 27 Eliz. c. 4, s. 2, which enacts, "that every conveyance of land made for the intent to defraud such persons as have purchased in fee simple, fee tail, for lives, or years, the same (z) Bishop v. Shillito, 2 B. & Ald 329, n. But see Davies v. Vernon, 6 Q. B. 443. (g) See Lister v. Turner, 15 L. J., Ch. 336. land so formerly conveyed, shall be deemed to be utterly void" (h). A lessor cannot maintain trover against his lessee for an expired or forfeited lease (i). On the rescission of a contract for the sale of land, the vendee, who has prepared the deed of conveyance at his own expense, may maintain trover for it (j). As the master of a ship has no general authority by law, in the absence of his employers, to sell the ship entrusted to his care, but only an implied authority to act for the benefit of the concern, exercising a sound discretion, such as the owner himself would exercise if he were upon the spot, it follows, that the owner of a ship may recover in an action of trover from a vendee claiming by purchase from the master, unless the vendee can show that the ship was sold by the master under such an urgent necessity as would have induced the owner to have sold the ship if he had been present (k); as where the ship was totally wrecked, and a large part of the cargo damaged, in a distant country (l). So, the captain of a ship has no authority to sell the cargo, except in cases of absolute necessity; and, therefore, where, in the course of a voyage from India, the ship was wrecked off the Cape of Good Hope, and some indigo, which was part of the cargo, was saved, and the same was there sold by public auction, by the authority of the captain, acting bonâ fide according to the best of his judgment, for the benefit of all persons concerned, but the jury found that there was no absolute necessity for the sale; it was held, that the purchaser at such sale acquired no title, and the indigo having been sent to this country, that the original owners were entitled to recover its value (m). Although the captain of a ship find it impossible to reach his port of destination, he has not any implied authority, as the agent of the shippers, to sell the cargo for their benefit in a foreign port into which he is driven; and if he does so, although it should appear that he acted bonâ fide for the interest of all persons concerned in the adventure, yet such sale will be considered as a tortious conversion, for which the ship-owner is liable (n). As to the master's power to hypothecate his cargo, see ante, p. 1037. A. entrusted B. with goods to sell in India, agreeing to take back from B. what he should not be able to sell, and allowing him what he should obtain beyond a certain price, with liberty to sell them for what he could get, if he could not obtain that price. B., not having been able to sell the goods in India himself, left them with an agent to be disposed of by him, directing the agent to remit the money to him (B.) in England. It was held, that A. could not (h) Kerrison v. Dorrien, 9 Bing. 76. (1) Ireland v. Thompson, 4 C. B. 149. (m) Freeman v. The East India Company, 5 B. & Ald. 617. (n) Van Omeron v. Dowick, 2 Campb. 42. maintain trover against B. for the goods (o). Where goods were placed in the hands of a factor for sale, and he indorsed the bills of lading to the defendants, who thereupon accepted a bill for him, and he, at the same time, directed the defendants to sell the goods and reimburse themselves the amount of the bill out of the proceeds: it was held, that the defendants having sold the goods, could not be sued for them in trover by the original owner (p). It seems, that the original owner might have maintained an action for money had and received for the proceeds, and that the defendants could not have retained the amount of the money advanced to the factor (q). Trover will not lie for goods irregularly sold under a distress; the 11 Geo. II. c. 19, s. 19, having declared that the party selling should not be deemed a trespasser ab initio, and having given an action on the case to the party grieved by such sale (r). But if a party pay money in order to redeem his goods from a wrongful distress for rent, he may maintain trover against the wrongdoer (s); for obtaining goods under an abuse of legal process is a conversion (t): secus, where the goods were obtained under a threat, that if they were not delivered up the expense of a bankruptcy would fall upon him (the holder of the goods), and the commissioner would be very severe with him (u). So trover will lie by the assignees of a bankrupt against a sheriff, who sells goods to satisfy an invalid as well as a valid execution against a bankrupt, in order to recover the surplus (x). II. By whom and against whom Trover may be maintained. One joint-tenant, tenant in common, or coparcener, cannot bring trover against his companion for goods remaining in his possession, because the possession of one is the possession of both; if trover be brought, the joint tenancy, &c. is good evidence upon the plea of Not Guilty (y). Upon this principle it was held, that A., a member of an amicable society, who had been entrusted with a box, containing the sums of money subscribed, and who was bound by bond to keep it safely, could not maintain trover against B., another member of the same society, and a stranger, in a case where B. had got possession of the box; carried it away; and delivered it to the stranger; Buller, J., observing, that it was ad (0) Bromley v. Coxwell, 2 B. & P. 438. (p) Stierneld v. Holden, 4 B. & C. 5. But ordinarily a factor cannot delegate his authority; Story on Agency, s. 13. (q) Cockran v. Irlam, 2 M. & S. 302, acc. But see Stephens v. Badcock, 3 B. & Ad. 354. (r) Wallace v. King, 1 H. Bl. 13. See ante, p. 689. (8) Shipwick v. Blanchard, 6 T. R. 298. p. 1359. mitted, that one of the defendants was a member of the society, and, consequently, had a general property in the box; that a special property could not give a right in this action against a general property. The custody only was committed to the plaintiff, the property remained in the society (z). So if a thing be deposited by one with the authority of another, and received by the bailee to keep on the joint account of the two, one alone cannot lawfully demand it without the consent of the other, so as to maintain trover upon the bailee's refusal to deliver it (a). After an act of bankruptcy committed by one of two partners, joint effects were sent away, which came to the defendant's hands: then the solvent partner died, leaving the defendant his executor, and afterwards a commission of bankrupt was taken out against the surviving partner, and his estate assigned to the plaintiffs; it was held, that they were tenants in common with the solvent partner, and after his decease, with his representative, by relation from the act of bankruptcy; and, consequently, could not maintain trover against the defendant, claiming under such solvent partner (b). If one tenant in common merely takes the thing in common out of the possession of his companion, and carries it away, there no action lies by the other tenant in common; but if he destroy the thing in common, the other may bring trespass or trover (c). As where it appeared that one tenant in common of a ship had forcibly taken it out of the possession of his companion, and secreted it from him, so that he knew not where it was carried, and changed the name of it, and it afterwards got into the hands of a third person, who sent it on a foreign voyage, where it was lost, Lord King, C. J., left it to the jury, whether, under the circumstances, the destruction was not by the defendant's (the tenant's in common) means; and, the jury finding in the affirmative, the court, approving of the chief justice's direction, refused to set aside the verdict (d). The preceding case proceeded upon the principle, that there was a destruction of the subject-matter; and it is now established, that one tenant in common cannot recover for a chattel in trover against his companion, without first proving a destruction of the chattel, or something that is equivalent to it. Hence, where one of two But (z) Holliday v. Camsell, 1 T. R. 658. (a) May v. Harvey, 13 East, 197. if the bailee, under such circumstances, do deliver it to one of the bailors at his sole request, the two cannot maintain an action against the bailee for the breach of his undertaking; Brandon v. Scott, 26 L. J., Q. B. 163. (b) Smith v. Stokes, 1 East, 363. See ante, p. 1157. (c) Brammel v. Jones, B. R. T. 22 Geo. III., MS. (d) Barnardiston v. Chapman, cited 4 East, 121. It seems that the mere sale of the whole of a ship by one who is only a part owner, in exclusion of the right of another, is not equivalent to the destruction of the subject-matter so as to enable his co-tenant to maintain trover against him for it; Heath v. Hubbard, 4 East, 110. But if the sale of the subject-matter of a tenancy in common be such as to alter the property in it, and deprive the co-tenant of his power to enforce his legal rights against the party in possession (e. g. if the chattel has been sold in market overt), that would (semble) be a conversion; Mayhew v. Herrick, 7 C. B. 229. tenants in common of a whale, cut it up and expressed the oil; it was held, that such alteration in the form of the property did not amount to a tortious conversion, so as to enable the companion to maintain trover; for the act done was an application of the whale to the only purpose which could make it profitable to the owners, and tended to preserve it instead of destroying it; and as the parties were clearly tenants in common of the whale, they became tenants in common of the produce, after it was converted into oil (e). Note. It was admitted that the taking by the defendant, and the refusal to deliver on demand, was not any misfeasance in a tenant in common, and did not give a right of action. See Cubitt v. Porter, 8 B. & C. 257; where it was held, that, where an ancient wall was pulled down by one of two tenants in common with the intention of rebuilding it, and a new wall was built of a greater height than the old one, this was not such a total destruction of the wall as to enable one of the tenants in common to maintain trespass against the other. Secus (semble), where a chimney is built upon it. Stedman v. Smith, 26 L. J., Q. B. 314. The rule that one tenant in common cannot bring trover against his companion, holds only in those cases where the law considers the possession of one to be the possession of both. Hence, where A. is tenant in fee of one fourth part of an estate, and B. tenant in common with him, of the other three parts, for a term of years, without impeachment of waste, if A. cut down any trees, and B. take them away, A. may maintain trover; for though B., being dispunishable of waste, might cut down what trees he would, yet trees having an inheritable quality, and B. not having any interest in the inheritance, he cannot take the trees when felled by him who has the inheritance, and, consequently, his possession, being tortious, cannot be said to be the possession of the other (f). It is to be observed also, that if one joint-tenant, &c. bring trover, without his companion, against a stranger, the defendant cannot give the joint-tenancy, &c. in evidence on the general issue, so as to bar the plaintiff of his action, but only to prevent him from recovering any more than his own share in the value of the property in question where such property is divisible (g); for it is a general rule, that the defendant can avail himself of an objection of this sort, viz. that all the part owners in a chattel have not joined in an action of trespass or tort, brought in respect of such chattel, by a plea in abatement only (h); and if one of two part owners of a chattel sue alone for a tort, and the defendant do not plead in abatement, and the part owner recover for his share, the other part owner may afterwards sue alone, and the defendant cannot plead in abatement of such action (i). (e) Fennings v. Lord Grenville, 1 Taunt. 241. (f) West v. Pasmore, Bull. N. P. 35. Barnardiston v. Chapman, cited 4 East, (h) Bloxam v. Hubbard, 5 East, 420. |