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from someone other than the true owner, a conversion by either the perowner, and the only act relied upon to son giving or receiving such bill of constitute the conversion is such pur- sale. chase. This excludes cases involving In Andrews v. Shattuck (N. Y.) the question as to whether the taking supra, it is held that where the purof possession of property, and using chaser of goods never received posit, or otherwise disposing of it, con- session of them, since they were stitute conversion. However, several seized by the revenue officers before cases will be referred to where the delivery had been made, he could not buyer accepted delivery of the prop- be held liable for their conversion erty, and some cases will be referred merely by showing a purchase of the to where he exercised some right of goods by him and his claim of ownerownership over it other than merely ship thereunder. purchasing it.

In Dudley v. Hawley (1863) 40 It is a general rule that in order Barb. (N. Y.) 397, affirmed in (1868) that an act may constitute a conver- 39 N. Y. 441, 100 Am. Dec. 452, where sion of personal property it must a jeweler was held liable for the conamount to a tortious detention of the version of certain jewelry which he, same from the owner, or the exclusion as the agent of the supposed owners, or defiance of the owner's rights, or a and to accommodate them, believing withholding of the possession under in good faith that they were the owna claim of title inconsistent with that

ers of the property, sold to a third of the owner. 26 R. C. L. p. 1110, 20. person, turning the receipts of the

By the great weight of authority, sale over to them. The court said: the mere act of purchasing personal “There is a class of cases which hold property from someone other than the that the defendant cannot be made true owner, where the buyer acts in liable, either in trespass or any other good faith, is not such an assumption form of action, for simply receiving of ownership or such an intermeddling goods wrongfully delivered to him by with the rights of the true owner as the person in actual possession. to render the buyer liable to the for- The result of these cases would seem mer for the conversion of the property. to be that 'while no liability is inJenkins v. Holly (1920) 204 Ala. 519, curred by the purchase or acceptance 86 So. 390; Winchester v. Joslyn of goods, in ignorance of the title of (1903) 31 Colo. 220, 102 Am. St. Rep. the true owner, unless they are subse30, 72 Pac. 1079; HALL v. MERCHANTS' quently disposed of to a third person, STATE BANK (reported herewith) ante, or appropriated to the use of the ven1093; Fuller v. Tabor (1855) 39 Me. dee or bailee, yet, that the benefit of 519; Davis v. Buffum (1863) 51 Me. this principle cannot be claimed with160; Burnside v. Twitchell (1861) 43 out proving that they came to his N. H. 390; Matteawan Co. v. Bentley hands through a delivery made by the (1852) 13 Barb. (N. Y.) 641; Andrews wrongdoer, and without any particiv. Shattuck (1860) 32 Barb. (N. Y.) pation in the tort of the latter, other 396.

than is necessarily implied in innoMerely taking and recording a quit-cently receiving that which there is claim deed to land upon which there no right to give.' . . And the betis a building that belongs to a third ter opinion would seem to be that igperson does not, as to the latter, con- norance of the defendant of the wrong stitute a conversion of the building. done by the person from whom he reFuller v. Tabor (1855) 39 Me. 519. ceives the goods will not protect him

In Davis v. Buffum (1863) 51 Me. from responsibility for subsequent 160, the court said that giving a bill acts amounting to a conversion or asof sale of personal property in the portation, although done in good faith possession of a third person, who is and without a knowledge of the true the owner of the same, without any state of the title; ... nor unless other interference therewith or de- his share in the transaction has been livery thereof, is not, as against such purely passive, and has been limited to accepting and paying for the goods ful sale by him, of the property, does in the usual course of business.” not constitute a conversion, even

Merely taking a mortgage upon though there is by him an assertion of property from someone other than the absolute ownership of the property. true owner does not constitute a con- The court said that the fact that the version as against the latter, where pledgee asserted title did not constithe mortgagee never took possession tute a conversion; that "his mere asof the property, or in any way inter- sertion did not in any way deprive the meddled with it. Matteawan Co. v. defendant of his right to redeem, and Bentley (1852) 13 Barb. (N. Y.) 641. no one is shown to have been injured

In the reported case (HALL V. MER- by the statement." CHANTS' STATE BANK) the question is In Sigel-Campion Live Stock Co. presented whether there is conversion v. Holly (1908) 44 Colo. 580, 101 Pac. where the holder of a mortgage upon 68, where it was sought to hold a comproperty subject to a prior landlord's mission firm liable to the mortgagee lien, in order to avoid foreclosure of for the conversion of the mortgaged the mortgage, accepted a bill of sale chattels, which were sold by the firm of the property from the tenant, with- without knowledge of the existence of out knowledge of the superior land- the mortgage, and there was a ques. lord's lien. This in and of itself was tion of fact as to whether or not the held not to constitute a conversion so mortgagee consented to, or acquiesced as to render the holder of the bill of in, the sale, the rule is stated that the sale liable to the landlord in trover. exercise of acts of ownership or do

In Burnside v. Twitchell (1861) 43 minion over the property of another N. H, 390, it is held that merely taking which are not inconsistent with the a mortgage upon personal property, true owner's right or title does not although the mortgagor is not the true constitute a conversion. owner, does not constitute conversion In Spackman v. Foster (1883) L. R. by the mortgagee, where the property 11 Q. B. Div. (Eng.). 99, involving the never is in his possession, and he question of when the Statute of Liminever uses or appropriates it in any tations began to run in favor of a perway, or exercises over it any act of son receiving property as pledgee ownership other than the mere taking from someone other than the true of the mortgage.

owner, and holding that the statute In Jenkins v. Holly (1920) 204 Ala. did not run until after a demand by 519, 86 So. 390, in holding that the the true owner for the possession of mortgagee of premises was not liable the property, the court said: "The defor conversion of goods stored there- fendant, when he received these deeds, in by the owner of the mortgaged had no knowledge that the person who premises merely by reason of the fact pledged them had no title to them. that he was present when the goods He kept them as depositee or bailee, were wrongfully removed by lien bound to return them on payment of holders, the tenant, who was the

agent the money he had advanced. He held of the owner, having opened the room them against the person who had dewherein the goods were stored, the posited them, but not against the real rule is stated that the mere declara- owner, and non constat that he would tion of ownership, unaided or uncom- not have given them up if the real plemented by some act with respect owner had demanded them. This does to the control or dominion of the chat- not seem to me to be a conversion. tel against the true owner's right, giv- There was no injury to the property ing color and effect to such declara- which would render it impossible to tion, is not a conversion of the prop- return it, nor claim of title to it, nor erty.

claim to hold it against the owner. In Winchester v. Joslyn (1903) 31 The defendant was somewhat in the Colo. 220, 102 Am. St. Rep. 30, 72 Pac. position of a finder of lost property, 1079, it is held that a mere purchase and the trover or finding is innocent by a pledgee of property, at an unlaw- unless it is followed by conversion."



There are many obiter statements to be found in cases not involving the specific state of facts presented in this annotation, which are opposed to the holding that a mere purchase of property, or the acquirement of some interest therein, does not, ipso facto, constitute a conversion, The cases upon the facts, however, are distinguishable.

Thus, in M'Combie v. Davies (1805) *6 East, 538, 102 Eng. Reprint, 1393, Lord Ellenborough, Ch. J., remarked: A man is guilty of a conversion who takes my property by assignment from another, who has no authority to dispose of it; for what is that but assisting that other in carrying his wrongful act into effect." The other judges assented, two of them observing that when the defendant was afterwards informed of the plaintiff's rights, and the property was demanded of him, he refused to deliver it.

This distinction is pointed out in Spackman v. Foster (Eng.) supra, where the court said: “The case most relied on by the defendant was M'Combie v. Davies (Eng.) supra. The headnote of that case certainly appears to support the defendant's argument, but there is the great distinction that there there was a demand and refusal. Lord Ellenborough says that assuming to oneself the property and right of disposing of another man's goods is a conversion, but that was not the case here, for all that the defendant assumed was the right of safe-keeping against the person depositing, till the amount advanced should be repaid; but he did not in any other respect assume to himself the right of disposing of another man's goods, which Lord Ellenborough said would amount to conversion. The other judges assented, but the ground of their opinion is added, that, when the defendant was afterwards informed of the plaintiff's rights, and the tobacco was demanded of him, he refused to deliver it.'"

So, in Hyde v. Noble (1843) 13 N. H. 494, 38 Am. Dec. 508, where demand was made upon the purchasers of lumber from someone other than the true owner, before an action was

brought against them for the conversion thereof, in holding the defendants guilty of conversion, the court said: “The purchase by the defendants, taking possession as they appear to have done, and holding it as their own property, was a conversion. They received the possession from one who had no authority to deliver it to them, under a sale which purported to vest the property in them; they, by the purchase, undertook to control it as their own property. This was an assumption of power over it inconsistent with the rights of the plaintiff. Purchasing the property from one who had no right to sell, and holding it to their own use, is a direct act of conversion, without any demand and refusal. Their possession was lawful in its inception, by reason of the want of authority

to make the transfer. It is only where a party obtains the possession lawfully that it is necessary to show a demand and refusal.”

And see Velsian v. Lewis (1888) 15 Or. 539, 3 Am. St. Rep. 184, 16 Pac. 631, holding to be guilty of conversion the agent of the buyer of a quantity of wheat from a warehouseman, where the agent caused the wheat to be shipped away, and the facts were held sufficient to show that he knew the warehouseman did not have title to the wheat. The court said: At first blush, it may seem strange that one who takes possession of goods or chattels under a contract of purchase from one who had no right to sell should be treated as a wrongdoer; but the explanation of the principle lies in the common-law maxim 'caveat emptor,' which applies to the transfer of personal property. It is the buyer's own fault if he is so negligent as not to ascertain the right of the vendor to sell, and he cannot successfully invoke his bona fides to protect himself from liability to the true owner, who can only be devested of his right or title to his property by his own act, or by the operation of law. Every person is bound at his peril to ascertain in whom the real title to property is vested, and, however much diligence he may exert to that end, he

must abide by the consequences of pose of it; for what is that but asany mistake.

Nothing can be sisting the other in carrying his plainer than that no one can sell a wrongful act into effect?' right when he himself has none to The taking possession of personal sell, and that every such wrongful property under a contract of purchase sale, by whomsoever made, whether by is an act based on the assumption of thief or bailee, acts in derogation of ownership, or a right of dominion the rights of the owner and in hos- over the thing converted, where the tility to his authority, and consequent- vendor is without title, and, although ly can neither acquire themselves nor without evil intent, is a conversion confer on the purchaser any right or for which trover lies without previous title of such owner. Mere possession demand. The intent with which the of another man's property affords no wrongful act is done on the part of evidence that the person having such the defendant is not an essential possession has power to sell it, and element of the conversion. It is he who purchases or intermeddles enough that the true owner has been with it must see to it that he is pro- deprived of his property by the untected by the authority of one who authorized act of some person who has power to sell.' .. A posses- assumes dominion or control over it. sion taken under a purchase from one It is the effect of the act which conwithout title, and who has himself stitutes the conversion.... Hence, been guilty of a conversion in dispos- the conversion may consist simply of ing of the goods or chattels, is a a purchase, even by an innocent party, possession unauthorized and wrong- of goods or other personal chattels ful at its ind tion, and which the from one who has himself been guilty absence of evil intent in the pur- of a conversion in disposing of them, chaser cannot make rightful or lawful. where the buyer takes the goods or Such a possession is based on the as- chattels into his possession or cussumption of a right of property, or tody.” a right of dominion over it, derived The distinction between the mere from the contract of sale; and what is purchase of property, and taking posthis, in the legal sense, but a wrong- session of property and exercising ful intermeddling or asportation or other acts of ownership over it, as, for detention of the property of another? example, the leasing of the property, At common law, a conversion is that is made in Gilmore v. Newton (1864) tort which is committed by a person 9 Allen (Mass.) 171, 85 Am. Dec. 749. who deals with chattels not belong- Upon this point the court refers to ing to him, in a manner which is in- and quotes from 2 Greenl. Ev. $ 642, to consistent with the rights of the law- the effect: “A mere purchase of ful owner. ... The defendants, goods in good faith from one who had by taking possession under their pur- no right to sell them is not a conchase, assumed an ownership and ex- version of them against the lawful ercised a dominion over the property owner until his title has been made inconsistent with the rights of the known and resisted.' This position, plaintiff as the true owner. 'The very though not supported by the cases react,' said Lord Ellenborough, 'of tak- ferred to by Mr. Greenleaf, may be ing goods from one who has no right sustained by other cases. And not to dispose of them is a conversion, only are there decisions that 'a mere and held the action of trover main- purchase of property, without taking tainable.

And again,' said possession of it, is not a conversion the same learned judge, “the very as- of it, but also decisions that a pursuming to oneself the property and chase, receiving a pledge, or other right of disposing of another man's bailment, etc., of property from one goods is a conversion; and certainly who had no right to dispose of it, and a man is guilty of a conversion who taking possession thereof, without any takes my property by assignment from further act of dominion over it, do not another who has no authority to dis- always constitute a conversion of it.


But we need not discuss this class of cation, and were in denial of the plaincases, for no one of them sustains the tiff's right to immediate possession, defendant's objection; for his is a and a right of action then accrued to case not only of receiving an assign- the plaintiff without demand and rement and taking possession of the fusal. It will be noted that in this horse, but also of afterwards ex- case the defendant knew of the plainercising dominion over him by bailing tiff's claim of title. him to a third person.”

In Geneva Wagon Co. v. Smith So, in Crampton v. Valido Marble (1905) 188 Mass. 202, 74 N. E. 299, Co. (1888) 60 Vt. 291, 1 L.R.A. 120, 15 where the mortgagee of chattels which Atl. 153, the court stated that, ac- the mortgagor sold under concording to the rule of that state, ditional sale contract was held liable where one purchases personal prop- to the true owner for the conversion erty of a person in possession of it, of the chattels, the mortgagor, acting but who is not the true owner and has as his agent, having retained a key no right to sell it, and the purchaser to the building in which the property takes possession, claiming title to it was stored both before and after the as owner, and puts it to use, this is sale of the property by foreclosure an actual conversion, and makes him of the mortgage, the decision was liable in trover to the owner without based upon a finding of fact that posany demand or notice, though he pur- session of the property was retained chased in good faith of one whom he under a claim of right inconsistent supposed to be the owner and entitled with the rights of the mortgagee. to sell it, and referred to this rule In Dodge v. Meyer (1882) 61 Cal. as a harsh rule.

405, a person was held liable for the In West Yellow Pine Co. v. Stephens conversion of property where he ac(1920) 80 Fla. 298, 86 So. 241, where cepted a bill of lading therefor from there had been an actual taking and someone other than the true owner, use of the property, the rule was and transferred the property to a stated that the essential element of third person. The rule is here stated conversion is a wrongful deprivation that trover may be predicated upon of the property of the true owner; any act which negatives or is inconneither manucaption nor asportation sistent with the right of the true is an essential element thereof. The owner, and it is not necessary that court cites with approval the state- there should be a manual taking of ment of the rule found in Quitman the property, or that it be applied Naval Stores Co. v. Conway (1912) 63 to defendant's own use. It is sufficient Fla. 253, 58 So. 840, to the effect that, if he exercises a dominion over it, where there is a taking of chattels whether for the use of himself or with the intent to exercise over them another. an ownership inconsistent with the So, in Omaha & G. Smelting & Ref. real owner's right of possession, there Co. v. Tabor (1889) 13 Colo. 41, 5 is a conversion-citing 21 Enc. Pl. & L.R.A. 236, 16 Am. St. Rep. 185, 21 Pac. Pr. 1012; 2 Words & Phrases, 1562. 925, 16 Mor. Min. Rep. 184, in holding

In O'Brien v. McSherry (1915) 222 to be guilty of conversion the pưrMass. 147, 109 N. E. 904, a daughter chasers of ore from someone other was held liable to her mother for the than the true owner, where the purconversion of the latter's piano, where, chasers mixed the ore with other ore with knowledge of her mother's title and disposed of it, the rule is stated thereto, she took from her father a that the defendants, by purchasing the bill of sale thereof, it, at the time, ore, acquired no title, and were conbeing in the father's house, where the sequently equally liable for its condaughter left it, but intending by the version with the party who sold it. bill of sale to assert ownership and do And it was a matter of no importance, whatever her father wished with the so far as the legal liability of defendproperty conveyed. The court said ants was concerned, whether they these acts were without legal justifi- were ignorant or informed of the true

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