toilet facilities had been constructed in the rear of the restaurant, which were easily accessible through the kitchen of the leased premises. The court said: "Rights and easements may and do pass to lessees by implication; 'but where the express words of the grant are not sufficient, the implication which supplies those words flows either from a reasonable necessity, or, considering all the circumstances, from the manifest intention of the parties"—and took the view that the use of the door, passageway, and toilet facilities in connection with the tenant's business was merely a convenience, and was not necessary to the beneficial use of the property. And in Bloomington Lodge, B. P. O. E. v. Roland (1920) 217 Ill. App. 435, the court denied the contention of the tenant of an upper floor of a building, the rear windows of which looked out over a court or unoccupied portion of the lot on which the building stood, that he had an easement of access by way of his rear windows, a fire escape, and the open court for the removal of garbage from the leased premises to an alley at the rear, so as to be entitled to enjoin his landlord from erecting an addition to the building which would occupy the court and necessitate the removal of the fire escape to another location, where there was nothing to show that the fire escape was ever intended as a means of ingress and egress to and from the leased premises, or that it was reasonably necessary or highly convenient, as distinguished from a mere convenience. And see Holtz Amusement Co. v. Schorr (1924) 122 Misc. 712, 204 N. Y. Supp. 733, supra, III. But compare Bauer V. Schwartz (1924) 122 Misc. 630, 203 N. Y. Supp. affirmed without opinion in 507, (1924) 209 App. Div. 827, 204 N. Y. Supp. 893, supra, III. From the report of Harmer v. Jumbil (Nigeria) Tin Areas, as given in [1921] 1 Ch. (Eng.) 200-C. A., it appears that in the lower court one who had leased a small portion of a large tract of land was held to be entitled to an injunction to restrain one who subsequently leased the remainder of the tract, and whose rights were conceded to be the same as those of the landlord, from constructing a railroad thereon by which his access to the leased premises was cut off. V. Miscellaneous. (Supplementing annotation in 12 A.L.R. 177.) In Harmer v. Jumbil (Nigeria) Tin Areas [1921] 1 Ch. (Eng.) 200-C. A., it was held that one who had leased a portion of a large tract of land for an explosive magazine, as the landlord knew,-a purpose for which he was obliged by law to obtain a license, which was subject to forfeiture if buildings were erected within a prescribed distance from the magazine, was entitled to an injunction to prevent one who subsequently leased the remainder of the tract from thereon thereon which erecting buildings would render his license subject to forfeiture. The court took the view that there was an implied obligation on the part of the landlord not to do anything that would violate the conditions under which the license was held by the tenant, as any such act would be in derogation of his grant, and that, since the rights of the second lessee could be no greater than those of the lessor, the first lessee was entitled to the same relief against the second lessee as he would have been entitled to against the landlord, had the buildings been erected by him. M. A. L. (— Iowa, —, 202 N. W. 256.) B. E. HALL et al., Exrs., etc., of E. A. Hall, Deceased, (Iowa,, 202 N. W. 256.) Trover, § 21 - taking bill of sale as conversion. 1. One holding a chattel mortgage upon property of a tenant, who takes a bill of sale of it to avoid the expense of foreclosure, without taking possession of the property or exercising dominion over it, is not guilty of conversion with respect to the landlord entitled to a prior lien upon the property. [See note on this question beginning on page 1096.] APPEAL by defendant from a judgment of the District Court for Woodbury County (Hamilton, J.) in favor of plaintiffs in an action brought to recover the value of certain property alleged to have been appropriated and converted by defendant to its own use. Reversed. Statement by Faville, Ch. J.: Action in conversion. The court submitted the case to the jury, which returned a verdict in favor of the plaintiff, and the defendant appeals. Messrs. E. C. Logan and Jepson, Struble, Anderson, & Sifford, for appellant: The mere receipt by one of the proceeds of the wrongful sale of mortgaged chattels, or chattels upon which a landlord has a lien for his rent, is not a conversion, which consists of any wrongful act of dominion asserted over the chattel in denial of the owner's right thereto, or inconsistent therewith. Faville, Ch. J., delivered the opin ion of the court: Appellees entered into a written lease with one Conklin, for certain lands in Woodbury county, for a term of three years, commencing March 1, 1918. By the terms of the lease the tenant was to pay a yearly cash rental for said premises. Ap Iowa Farm Credits Co. v. People's pellant held chattel mortgages upon Sav. Bank, 196 Iowa, 967, 192 N. W. A lien upon personal property does not ordinarily attach to the proceeds arising from its sale or conversion. Hartwig v. Iles, 131 Iowa, 501, 109 N. W. 18; Waters v. Cass County Bank, 65 Iowa, 234, 21 N. W. 582; the personal property of the tenant. In December, 1920, the tenant and his wife executed to appellant a bill of sale upon all of the property owned and held by the tenant upon the leased premises. Subsequently, a son of the tenant shipped certain hogs from the leased premises to Sioux City. It appears that the hogs were shipped to the firm of Clay Robinson Company, and under the instructions of the son a remittance of the proceeds was made to appellant, where the funds were credited to the account of the tenant, who subsequently checked out a portion of the same for his own use, and gave to appellant a check for a portion of said funds, which was applied upon the indebtedness of the tenant to appellant. A substantial portion of the rental due to appellees being unpaid, this action is brought against appellant in conversion to recover the value of the hogs so sold. The proposition before us resolves itself into the one question as to whether or not the taking of the bill of sale by appellant from the tenant constituted a conversion of the property, ipso facto. The appellant had chattel mortgages on the personal property of the tenant. No question is urged but that such chattel mortgages were subject to appellees' landlord's lien on the property. Appellant took the bill of sale before the lease expired. The bill of sale contained the following recital: "It being understood and agreed by all parties hereto that this bill of sale is given by the grantors for the purpose and with the intention of turning over to the mortgagee all of said described property in order to save the expense of foreclosure of said chattel mortgages and other expense." Appellees thus state the question: "It is our contention that the taking of this bill of sale by the appellant in itself constituted a conversion, and having converted the property upon which the appellees had a lien, which was prior to any lien of appellant derived from the chattel mortgages, appellant is liable to appellees for the reasonable value of all the property converted upon which appellees' lien is superior. The only question is whether or not it was converted by appellant, by the acceptance of the bill of sale from the tenant." Did the taking of such bill of sale, without more, constitute a conversion of the property, for which appellant is liable to appellees? Many definitions of conversion are to be found in the books. See 2 Words & Phrases, p. 1562; 1 Words & Phrases, 2d series, p. 1030. In Brown v. Dubuque Altar Mfg. Co. 163 Iowa, 343, 144 N. W. 613, we quoted from 2 Cooley on Torts, 3d ed. p. 859, as follows: "Any distinct act of dominion, wrongfully exerted over one's property in denial of his right or inconsistent with it, is a conversion. The action of trover being founded on a conjoint right of property and possession, any act of the defendant which negatives or is inconsistent with such right amounts in law to a conversion. It is not necessary to a conversion that there should be a manual taking of the thing in action by the defendant; it is not necessary that it should be shown that he has applied it to his own use. Does he exercise a dominion over it in exclusion or defiance of the plaintiff's right? If he does, that, in law, is a conversion, be it for his own or for another person's use." See also Cutter v. Fanning, 2 Iowa, 580; Reizenstein v. Marquardt, 75 Iowa, 294, 1 L.R.A. 318, 9 Am. St. Rep. 477, 39 N. W. 506; Iowa Farm Credits Co. v. People's Sav. Bank, 196 Iowa, 967, 192 N. W. 139. The precise question here presented does not appear to have heretofore been before this court. In Davis v. Buffum, 51 Me. 160, the defendant leased a sawmill to parties who placed machinery therein. The lessees assigned the lease and sold the machinery to the plaintiffs, who took possession. During the occupation the defendant deeded the mill and all appurtenances to third parties. The plaintiffs subsequently left the premises, and sued the defendant for conversion of the machinery. The court said: "This being an action of trover, the only question presented is whether the plaintiffs have shown an act of conversion on the part of the defendant. The plaintiffs claim to recover on the ground that the defendant's deed to Dane and Per (— Iowa, —, 202 N. W. 256.) kins was per se a conversion-before the expiration of his lease. "But this is not so. When that deed was executed the plaintiffs were in the undisturbed enjoyment of their property and so remained during the whole duration of the lease. The deed of the defendant conveyed nothing he did not own; certainly not to grantees with notice of all the facts. The giving a bill of personal property in the possession of a third person, who is the owner of the same, without any other interference therewith or delivery thereof, is not, as against such owner, a conversion by either the person giving or receiving such bill of sale. In Fuller v. Tabor, 39 Me. 519, the plaintiff brought an action of trover for a building which had been placed on the land of another by his precedent consent, or subsequent assent. The defendant, when a demand was made, said he had bought it and paid for it. The court instructed the jury that taking a quitclaim deed of the land and building, and putting it on record, would not of itself constitute a conversion on the part of the individual so receiving the deed. Neither can the mere giving a deed of land leased, the lessee continuing in quiet possession, be deemed a conversion of fixtures which the tenant has the right to remove during his term. The lease was as valid after as before the deed. The rights of the lessee remained the same. The deed was no more a conversion of the tenant's fixtures than it was a breach of the covenants of the lease. The mere taking a mortgage of personal property from one having no title, and recording the same, without taking possession of the mortgaged property or interfering with the same, constitutes no conversion for which trover will lie." In Dean v. Cushman, 95 Me. 454, 55 L.R.A. 959, 85 Am. St. Rep. 425, 50 Atl. 85, a mortgagor of chattels sold the same to a good-faith purchaser, without notice, who exercised no dominion or control over them. In that case the chattel was hay, which had been placed in the purchaser's barn. The court said: "But although the mortgagor was clearly guilty of a conversion by the sale and removal of the hay, it does not necessarily follow that the purchaser would be likewise guilty. Taking all inferences as strongly as possible against the defendant, it appears that, besides the purchase and payment, the only other acts for which the purchaser could in any way be responsible was the delivery of the hay into his barn by the mortgagor. It may be inferable that this delivery was made in pursuance of the contract of sale, to which the defendant was a party. But the defendant had not sold, used, or abused the hay. He had resisted no claim of the plaintiff. He had exercised no actual dominion over the hay as against the plaintiff, or in denial of his right. The plaintiff was not in possession; therefore, his possession was not interrupted. We hold that one who purchases in good faith, without actual notice, mortgaged chattels of the mortgagor in possession, if he has merely received the goods into his own possession, and has exercised no other dominion or control over them to the exclusion of the mortgagee or in defiance of his rights, is not liable for a conversion, without demand or refusal." In Thorp v. Robbins, 68 Vt. 53, 33 Atl. 896, the court said: "How can it be said that the defendant has converted the property, when the plaintiff has had the exclusive and uninterrupted possession, as against the defendant and the purchaser, and the defendant and purchaser have exercised no acts of ownership or control over it? The case is not like cases cited and relied upon by the plaintiff, where it has been held that a sale is a conversion. In those cases, the contract of sale was consummated by a delivery of the property. A conversion, in the sense of the law of trover, is an unauthorized dealing with the goods of another by one in possession, whereby the nature or quality of the goods is essentially al tered, or by which one having the right of possession is deprived of all substantial use of the goods, permanently or temporarily. 15 Am. L. Rev. 363. Conversion is any unauthorized act which deprives another of his property, either permanently or for an indefinite time. Hiort v. Bott, L. R. 9 Exch. 86. Conversion Conversion is the turning or applying the property of another to one's own use. Bouvier's Law Dict. In the sense of the law of trover, a conversion consists either in the appropriation of the property to the party's own use, benefit, and enjoyment, or in its destruction, or in exercising dominion over it in exclusion or defiance of the plaintiff's right, or in withholding the possession from the plaintiff under a claim of title. Kellogg, J., in Tinker v. Morrill, 39 Vt. 480, 94 Am. Dec. 345. The mere assertion of ownership of property, without in any way interfering with it, or the owner's right to control it, is no evidence of a conversion. The findings do not show any interference with the property by the defendant or the purchaser that in any way affected the rights of the plaintiff; therefore, no conversion is shown, and the action of trover cannot be maintained." In Parker v. Middlebrook, 24 Conn. 207, the court said: "The action was trover, the gravamen of which is the conversion of the property for which it is brought. But a conversion is a wrongful or tortious act; and a mere purchase from a party in possession, who is the apparent owner, made in good faith, and in the regular course of business, is not a conversion against the lawful owner. Such a purchaser cannot be in a worse condition than the finder of a chattel which has been casually lost; and it ought, at least, to be shown that he has assumed dominion over the property, after the title of the lawful owner has been made known to him, which is usually evidenced by showing a demand of it, by the owner, and a refusal to deliver it up." conversion. The foregoing cases illustrate the tendency of the holdings of the courts. We are of the opinion that the mere taking of the bill of sale of the property, Trover-taking without the taking bill of sale as of possession, or the exercise of dominion over the same, or the doing of any act thereunder that interfered with the full enforcement and exercise of appellees' lien, did not constitute, in law, a conversion of the property, and we so hold. It follows that the trial court erred in submitting the question of the conversion of the hogs to the jury, on the theory that the execution of the bill of sale constituted a conversion. III. In view of our holding on the foregoing question, other matters urged by appellant are immaterial to a determination of the appeal, and a new trial must be had. Appellant's abstract is without any index, as required by our rules. The work of the court has been seriously handicapped failure to pre by the additional Appeal-costslabor and inconven- pare index-lability of appelience put upon it, lant. by this disregard of an important rule. The cost of printing appellant's abstract will be taxed to the appellant. The judgment of the District Court as to the amount found by the jury, in answer to a special interrogatory, to be the value of the hogs, is reversed. Evans, Arthur, and Albert, JJ., concur. ANNOTATION. May trover be predicated upon the mere act of purchasing property from someone other than the true owner, without taking actual possession. It is intended to limit this annotation to cases involving the question of the liability of the purchaser of property in trover, where he purchases |