and the mixer was not entitled to any bale which he could not identify as one of his lot of 25. He was not entitled to his proportionate 25 out of the 165 bales resulting from the mixture. So in the case of Hesseltine v. Stockwell,92 a confuser cut on his own land about 600,000 feet of pine timber, and also cut on the land of the plaintiff, Hesseltine, about 100,000 feet of timber, all of the logs being marked with the same mark and hauled to the same landing place. A residue of the mass was sold to the defendant. The plaintiff seized this which he claimed as his part of the logs, but the defendant took back the lumber out of the plaintiff's possession. Plaintiff sued in trover for the value of his interest in this part of the larger lot of 700,000 feet. The Maine court held, (1) if the commingling was accidental or by mistake as to title, plaintiff and defendant became tenants in common in due proportion, and plaintiff could recover for such proportion as the logs cut on his land bore to the whole number; but (2) if the trespass and commingling were willful and the logs were of unequal value, the whole lot of logs would become the property of plaintiff from whose land a portion of the mass was cut. (3) There would be, however, no forfeiture, even in the case of willful trespass, if the goods intermixed were of equal value. 48. Remedies.-The remedies of the parties whose goods are confused would seem to be as follows: In the case of innocent confusion, neither has a right to appropriate the whole mass. The inno 92 30 Me. 237, 50 Am. Dec. 627. cent party out of possession should invite the mixer to make a division, and on his refusal may take his own proportion, taking care to leave the other as nearly as possible what belongs to him. The owner of logs confused with those of a trespasser will not be liable as a wrongdoer for taking what he believes to be his share, even if he seizes more than ultimately proves to have been cut on his land, having no means of ascertaining the exact amount. He may, perhaps, take all, or at least as much as he in good faith believes to be necessary to recompense him.93 Either contributor can recover by replevin from the possessor of the mass a quantity equal to the amount he contributed without identifying the property as his original material.94 All possible inconvenience, however, or risk of loss from the confusion, is thrown upon him who produces it, and it is for him to distinguish his property or to show his share. Even if the goods confused were of the same kind and value, the wronged party would have the right of possession of the entire aggregate, leaving the wrongdoer to reclaim his share if he can prove his proportionate part." If confusion of goods be caused with fraudulent motive by a willful trespasser who mixes his own ore or his own logs or oil or gas with those of his innocent neighbor, and willfully neglects to keep account. of the amount of the respective contributions, and 93 Smith v. Morrill, 56 Me. 566. 94 Rust Land Co. v. Isom, 70 Ark. 99, 66 S. W. 434, 91 Am. St. Rep. 68. Compare Meyers v. Gerhart et al., 54 Wash. 657, 103 Pac. 1114, LEADING ILLUSTRATIVE CASES. 95 Wright v. Ellwood Ivins Tube Co., 128 Fed. 462. there are no means of exactly determining each one's ́share, a guessing method of apportionment will not be adopted, but the wrongdoer will lose his property, as all will be treated as if it were the property of the involuntary contributor until the contrary is shown.96 49. Comparison of confusion and accession.—In the case of confusion, where the result is a mass and not a single product, the contributors are treated as tenants in common of the mass where this is practicable. If the mass is capable of fair apportionment the law gives each his share, and aims to enforce no arbitrary forfeiture on the mixer, although some cases do this as against a fraudulent confuser. Unlike the rule in accession, the passive party never loses title by confusion. If the mixing was accidental, or not dishonest, each takes in proportion to his contribution; and even if willful, the better rule is the same, if the goods are of uniform quality, or those contributed by the confuser are not inferior. In the case of accession, where partition is more difficult, the common law tends to confer title on the largest contributor, leaving the other to a pecuniary claim for his contribution. 50. Confusion by fiduciary-Tracing mingled funds into the product.-Where an agent, collector, attorney, or trustee deposits moneys held by him as fiduciary for another, in one account with his own personal funds, to whom, in equity, does the resulting claim or credit belong? The entire credit ac 96 Stone v. Marshall Oil Co., 208 Penn. St. 85, 57 Atl. Rep. 183, 101 Am. St. Rep. 904, 913, note. count does not belong to the owner of the moneys misapplied, nor to the wrongful depositor, but the parties become co-owners in the proportion which their contributions bear to the sum total. Though money be confounded in a general mass, or converted into another species of property, yet it may be followed into its product or substitute, and is a charge upon any new investment, deposit in a bank, or purchase of land or stock, to the extent of the money traceable into it. The proceeds stand in equity for the original thing so long as they can be traced or identified."7 51. Deposits and withdrawals. Suppose that from time to time, after the confusion of a fund, the wrongdoer deposits in the bank and withdraws from the account divers amounts; can the defrauded owner still trace his money into the balance? This may become a question of the greatest importance where the assets of the insolvent confuser are being distributed in bankruptcy or insolvency by the trustee or receiver of his estate, and a defrauded owner claims a prior lien on the mass into which his funds have entered. 52. As against the trustee.-As between the trustee or fiduciary and the beneficial owner, where trust funds are mingled with individual funds, withdrawals will be first charged to personal funds, though the latter are received and deposited subsequent to trust funds. It is for a wrongdoer to distinguish between his own property and that of an innocent party with which he has confused it. So long as 97 Central Nat'l Bank v. Conn. Mutual Life Ins. Co., 104 U. S. 54. there is a balance continuously remaining on hand, this is appropriated by law to the innocent party, as presumably representing his contribution. It is otherwise expressed by saying that the charge or lien extends to the whole mass, and paying out part does not remove the charge from the remainder.98 Proof that a trustee mingled trust funds with his own and made payments out of the confused fund is sufficient identification of the balance of the fund coming into the hands of a receiver, not exceeding the smallest amount the fund contained subsequent to the commingling. The presumption is that the trustee neither paid out the trust moneys nor invested them in other property, but kept them sacred; but if ever the balance is reduced to zero, even for a day, the claimant would have no specific or preferred claim on subsequent deposits. 53. As against general creditors.-The mere misapplication of trust funds or the misappropriation of other property does not create a claim in the defrauded owner superior to that of the general creditors. If, however, the checks, or cash, or their proceeds, can still be traced into any specific bank deposit, land, chattels, or securities on hand, by which the fund for distribution among the creditors of the wrongdoer is swelled or increased over what it would have been but for the misappropriation, the victim has a paramount lien or equity as co-tenant to come in ahead of general creditors in bankruptcy, as where a deposit is accepted by an insolvent bank 98 Bank v. Peters, 123 N. Y. 272, 25 N. E. 319; Central Nat'l Bank v. Conn., etc., Co., 104 U. S. 54; In re Hallett's Est., 13 Ch. D. 696 (Eng.). |