It seems to be a complete answer to the first to say that it was no conversion, as the case shows that at a subsequent date the sale was consummated, and the plaintiff brought the hay, and until he bought it he had no interest in the hay which would enable him to maintain trover for it. . . . Merely forbidding the owner to remove his property which is in possession of a third party, and especially where the property was left by the owner in the possession of such third party, is not exercising such a dominion over the property as would enable the owner to maintain trover against the party thus forbidding him; and the fact that he stated that he bought the property of the owner at a prior date will not change the case.

E. D. Baker, for the plaintiff. A deed of a farm does not convey any title to hay harvested and stored in the barn on such farm. A wrongful sale of another's goods is a conversion of them; and though the custody of them remain unaltered, yet the delivery of the documentary evidence of title and the receipt of the value completes the act of conversion. 2 Greenl. Ev., s. 642. The sale of property to a third party without right constitutes conversion. Philbrook v. Eaton, 134 Mass. 398. Assuming to one's self the property, and the right of disposing of another man's goods, is a conversion. Gilman v. Hill, 36 N. H. 311, 324. The owner of personal property may maintain an action for its conversion by proof that the defendant has previously refused to deliver it to any person who had a right to demand it, although the plaintiff was not then the owner of it. Delano v. Curtis, 7 Allen, 470. SMITH, J. August 17, 1878, the plaintiff conveyed by quitclaim deed the Bosworth farm to the defendant, the deed containing no special reservation of any hay, or the right to remove any. October 25, 1878, W. O. Bosworth and others conveyed the Bosworth farm to the defendant, not reserving any hay, or the right to remove any. On the same day, by an agreement in writing, with provisions by which Bosworth might be entitled to a deed of the farm, the defendant leased the farm to Bosworth, who was then in the occupation of it, and sold to him all his interest in the hay thereon. July 29, 1878, the plaintiff attached all the hay in the two barns on the Bosworth farm, as the property of Bosworth, on a writ against Bosworth and others, the officer leaving a copy of the writ and of his return with the town clerk. The plaintiff recovered judgment and took out execution October 9, 1878; and October 18 the officer advertised the hay in the south barn for sale. At the time and place advertised the defendant attended and forbade the sale by the officer. The sale was thereupon adjourned from time to time until November 15, 1878, when the old hay and one undivided half of the new hay in the south barn was sold by the officer to the plaintiff. On two or three occasions after the execution sale, the defendant notified the plaintiff that he must not remove the hay, claiming that he had bought it of the plaintiff with the farm. These conversations occurred away from the farm. The defendant was not in possession

of the farm after October 24, 1878, and did not after that date sell, move, use, or in any way meddle with hay except as above stated. Bosworth used the hay before the next spring. The plaintiff never personally demanded it of any one in possession of the farm or barns. The question on these facts is, whether there was evidence from which it was competent to find a conversion of the hay by the defendant.

1. It having been lawfully attached, the officer had constructive possession of it, equivalent in law to actual possession until the sale. Johnson v. Farr, 60 N. H. 426. . . . If the defendant's act in forbidding the sale was a conversion, it gave the officer a cause of action; but it was not assignable, and the plaintiff cannot rely upon a conversion which took place before he acquired a title to the property. Tome v. Dubois, 6 Wall. 548, 554. But the purchase of the hay by the plaintiff from the officer who had the legal custody of it gave him a good title to it, and the right to its immediate possession. Delivery of the hay by the officer was not necessary to constitute a valid sale. The legal right to the possession drew to it the possession. Balme v. Hutton, 9 Bing. 471, 477.

2. As the defendant is not liable to the plaintiff by reason of anything he did in regard to the hay before the sale, the question then is, whether the notification to the plaintiff after the sale not to remove it, accompanied with a claim by the defendant that he bought it with the farm, was evidence of a conversion. Any distinct act of dominion wrongfully exerted over another's property in denial of his right, or inconsistent with it, is a conversion. It is not necessary that there should be a manual taking of the property. If the wrong-doer exercises a dominion over it in exclusion or defiance of the owner's right, whether it be for his own or another's use, it is in law a conversion. Cooley, Torts, 448; 2 Greenleaf, Ev. s. 642. Evans v. Mason, 64 N. H. 98.

"The very denial of goods to him that has a right to demand them is an actual conversion, and not only evidence of it, as has been holden; for what is a conversion but an assuming upon one's self the property and right of disposing of another's goods? And he that takes upon himself to detain another man's goods from him without cause, takes upon himself the right of disposing of them." Holt, C. J., in Baldwin v. Cole, 6 Mod. 212.

Although the defendant did not have the possession of the hay after the sale, or the right to control the movements of Bosworth, there was evidence that both understood after the sale that Bosworth was authorized by the defendant as vendor to use the hay; and that was a conversion by the defendant. He had sold it for a price to Bosworth. His claiming that he bought it of the plaintiff, and his forbidding the plaintiff to remove it, then in the actual possession of Bosworth, was evidence from which it was competent to find that his purpose was to enable his vendee to consume the hay, and that, for the purpose of this case, its conversion by his vendee, authorized by the vendor, was the act of the vendor. In authorizing and aiding Bosworth to convert it to his own use, he became

liable to the plaintiff in trover. Flanders v. Colby, 28 N. H. 34. When several join in the conversion, trover will lie against either of them. Pattee v. Gilmore, 18 N. H. 460. There was evidence from which it was competent to find a conversion by the defendant. Exceptions overruled. BLODGETT, J., did not sit; the others concurred.

308. DOZIER v. PILLOT

SUPREME COURT OF TEXAS. 1891

79 Tex. 224, 14 S. W. 1027

ERROR from District Court, Harris County.

E. P. Turner, for plaintiffs in error. F. A. Schaeffer and E. P. Hamblen, for defendant in error.

GAINES, J. This suit was brought by appellants as husband and wife to recover of appellee damages for the alleged conversion by him of certain personal property belonging to the wife. The facts, as disclosed by the evidence upon the trial, were that, on the 5th of February, 1886, Pauline Dozier, joined by her husband, executed a deed of trust upon the property to secure Pillot in payment of a promissory note for $600, and interest, executed the same day, and due one year after date. The trustee was empowered to sell upon default; but the mortgage provided that, until default, the mortgagors should have the possession, use, and control of the mortgaged property. The property consisted of certain bar furniture and fixtures, and was, at the time the mortgage was executed, in a certain room belonging to Pillot, which the appellant John Dozier was holding under lease from month to month. In May, 1886, Dozier leased the mortgaged property to Wolfe & Gentry for the term of one year, and by his procurement Pillot leased them the room in which it was situated. On September 15, 1886, Wolfe & Gentry "sold out the stand" to Kendall & Jones, moved to another house, leaving the bar furniture and fixtures as they were when they took possession. Wolfe & Gentry notified Dozier that they had abandoned the property, since they could not pay the hire agreed upon; and Kendall & Jones informed him that they had bought the lease of the room, and had closed it up, in order to get rid of the competition, and that they had no use for the furniture. Such being the state of affairs, Dozier, according to his version of the transaction, demanded of Pillot the privilege of moving the property to a saloon on another street, and Pillot refused to give him permission to do so, unless he would give a bond, with sureties, conditioned to pay the note when it fell due, or else would pay the note then, he agreeing to waive the interest. This, Dozier declined to do. Pillot's version of the affair is different in some respects, but he admits that he refused to consent for Dozier to move the property. The note not having been paid at maturity, the mortgaged chattels were sold by the trustee, and brought only $15 over the

debt, interest, and expenses of the sale. There was testimony tending to show that the property was worth largely more than the sum for which it was sold.

The appellants based their claim of a conversion of the property, and for a recovery of damages, upon appellee's refusal to consent to its removal. We are of opinion that the evidence, taken in its most favorable aspect, does not show a conversion. If Pillot had had possession of the furniture and fixtures, the case would have been different. When the property of one person is held by another, who refuses to deliver, it is to be presumed that the owner cannot regain possession without incurring the danger of a breach of the peace. He may act upon this presumption, and is not required to make the attempt; hence the refusal of the holder is evidence at least of a conversion. Robinson v. Burleigh, 5 N. H. 225. So, if the property be in the house of another, the owner cannot repossess himself of it against such other's will, without committing a trespass; and hence a refusal to deliver may be deemed a conversion. But in this case the room in which the property was placed was leased to Kendall & Jones, and was as absolutely under their control as if they held it by fee-simple title. Their refusal to permit Dozier to enter to retake his property, he could not have disregarded, without a violation of law. During the continuance of the lease, Pillot had no control over it, so far as the testimony discloses, and his refusal Dozier was not bound to respect.

We have examined the authorities cited by appellants' counsel, and none of them are in conflict with the principles here announced. It is necessary to consider in detail the assignments of error. The evidence, viewed in the most favorable light for the plaintiffs, did not warrant a recovery. No other verdict, except one for the defendant, could have been properly returned under the testimony, and it is immaterial whether the charge of the Court was in all respects correct or not. judgment is affirmed.

309. GASKILL v. BARBOUR

SUPREME COURT OF NEW JERSEY. 1898

62 N. J. L. 530, 41 Atl. 700

ON demurrer to amended declaration.

The

Before MAGIE, Chief Justice, and Justices DIXON, LUDLOW and COLLINS.

For the demurrant, Eugene Stevenson. Contra, Babbitt & Law

rence.

The opinion of the Court was delivered by

COLLINS, J. By the declaration demurred to it is averred that on December 1, 1893, the Burlington Carpet Company mortgaged to the Camden Safe Deposit and Trust Company, as trustee, among other

goods and chattels, two hundred and thirty-seven copper rolls; that on August 7, 1894, the Camden company was lawfully possessed as of its own property as such trustee of the said rolls, and, being so possessed, casually lost the same out of its possession, and that on that day the same came to the possession of the defendants by finding; that on August 10, 1896, the Court of Chancery relieved and discharged the Camden company from all further performance of the trust under the mortgage, and substituted the plaintiff as trustee and ordered assignment to him of the mortgage, and that afterwards the same was so assigned. It is then charged that before the plaintiff succeeded to the trust the defendants converted and disposed of the rolls to their own use, to the damage of the plaintiff as trustee, etc.

If the plaintiff is to be considered as the assignee of a chose in action, he must fail, because there is no authority for his maintaining suit thereon in his own name.

.

On the other hand, if the plaintiff, as we think is properly the case, is to be considered as succeeding to the legal title of chattels by assignment of the mortgage, he has no standing to maintain trover when he alleges a conversion prior to his right of possession. The holder of a mortgage entitled to possession may sustain trover for the mortgaged chattels, and the mere statement of a mortgage without naming its terms will imply a right of possession. But it is fundamental in trover that the plaintiff must have had his right, whatever its character, at the time of the conversion. A subsequent acquisition of title will not support the action. Chit. Pl. 148, 149 (notes 2 and 3, 11th Am. ed.); Overton v. Williston, 31 Pa. St. 155, 160. Titles to chattels may be transferred by an owner or mortgagee though he be out of possession, and the transferee may bring trover against the possessor, but only if the chattels are withheld from him after demand, or if in any other way the facts admit of an allegation of conversion after the plaintiff's acquisition of title, although it may be a new conversion.

The nearest approach to a precedent for the plaintiff that I have found is Tome v. Dubois, 6 Wall. 548, where it is held that conversion does not deprive the owner of personal property of the power of making a valid sale, as he may, if he see fit, waive the tort; and that in such a case the vendee may sue in trover, after demand and refusal. The facts proved were that logs had been sawed into lumber by the defendant before the sale to the plaintiff. The plaintiff demanded the lumber sawed and unsawed, and was refused. On these facts the Supreme Court of the United States sustained trover. All that appears in the reported case as to the allegations of the declaration is the recital that the action was "to recover damages for the conversion by defendant of certain pine saw-logs and certain planks which the plaintiffs alleged to be their property." It is plain that this decision is no authority for the maintenance of trover where the conversion alleged was admittedly prior to the plaintiff's right of possession. This is well shown by Mr.