1st. The property affected. II. TROVER. if a tenant, during his tenancy, remove a dung heap, and at the time of so doing dig into and remove virgin soil that is beneath it the landlord may maintain either trespass de bonis asportatis or trover, for the removal of the virgin soil (s) (1). It lies for an unstamped agreement (t); and for a deed relating to land (u); and books of account (2) (2); but in these instances detinue is the more usual, and often the preferable remedy. Where goods have been sold or money has been paid by a debtor, in contemplation of his bankruptcy, by way of fraudulent preference to his creditor, it may be safer for the assignees to proceed for the recovery thereof in trover, rather than by action of assumpsit for goods sold by the bankrupt, or money had and received to his use; because, by adopting the latter form of action they might enable the defendant to avail himself of his original debt as a set off (y); but the set-off would not hold against a count for goods sold by the assignee as such, or money had and received to their use as assignees, after the bankruptcy (z). Trover is preferable to an action of assumpsit, when the defendant has converted the produce of a bill, &c. and has become bankrupt, and obtained his certificate; because to the former action the certificate could not afford a defense (a). [ *148 ] The general rule is clear, that to support trover the plaintiff must have the right to some identical or specific goods (b) (3). Trover does not lie for money had and received generally (c); but it may be maintained *for so many pieces of gold or silver, though not in a bag; because damages, and not the goods or articles themselves in specie are the object of the suit (d); and in that case the defendant can only redeem himself by tendering to the plaintiff the same specific pieces (e). And trover lies for an undivided part of a chattel, as three-fourths of a ship (f). Although a contract for the sale of goods be complete and binding under the Statute against Frauds, yet the vendee acquires no property in them which can enable him to maintain trover, if any acts remain to be done before the delivery to ascertain or distinguish the quantity or exact amount of the price to be paid by the purchaser. Thus, if a portion of an entire bulk of goods be sold, and be not in its nature ascertainable without weighing, or (s) Higgon v. Mortimer, 6 Car. & P. 616, (u) 1 Wils. 106; 2 T. R. 708; 1 Bing. 45; (x) 2 Stark. R. 286. As to the conversion of fixtures, see Longstaff v. Meagoe, 4 Nev. & Man. 211. (y) 4 T. R. 211; 2 Hen. Bla. 145; Cullen, 201, 202; See 16 East, 140; 3 M. & Sel. 199. (z) See 10 East, 418; 16 East, 135. (b) 5 B. & Ald. 654; 1 D. & R. 285, S. C. (c) 5 B. & Ald. 652; 1 D. & R. 282, S. C. (d) Vin. Ab. Action, Trover, K.; Bac. Ab. Trover, D. Foreign Coin, 4 Taunt. 24. (e) Per Abbott, C. J., 5 B. & Ald. 654; 1 D. & R. 287, S. C. (f) 4 Campb. 272. (1) Where a farm is taken by a tenant for agricultural purposes, the manure made upon it belongs to the farm, and not to the tenant, and if at the expiration of his term, the tenant re move or dispose of it, case is the appropriate remedy for the injury. Middlebrook v. Corwin, 15 Wend. 169. Trover lies for manure lying upon the ground and not incorporated with the soil. Pinkham v. Gear, 3 N. Hamp. 484. See Stone v. Proctor, 2 Chip. 116. Cutting growing corn and carrying it away, will be a conversion of it to sustain trover. Nelson v. Burt, 15 Mass. 204. (2) A debtor who has made copies of his creditors' account against him, may, if the creditor obtain possession of such copies, and refuse to redeliver them to the debtor, sustain trover therefor against the creditor. Fullam v. Cummings, 16 Vermont, 697. Trover may be main tained for a note which has been paid and by mistake left in the hands of the holder. Pierce v. Gilson, 9 Vermont, 216. (3) As to the evidence by which a party will be estopped to say he has not the specific articleɛ he has sold, see Chapman v. Searle, 3 Pick. 38. The proper ty affected. other act separating and distinguishing it from the rest; as in the case of the II. TROVER sale of ten out of twenty tons of flax, the same being in mats of an unequal size and quantity (g); or of so many tons of a larger quantity of oil (h); or of bark at so much per ton (i); the vendee could not maintain trover until his portion had been ascertained and set apart. The same rule holds in the case of a contract to manufacture goods, as to build a carriage, &c. and no property passes in the goods until finished, or considered and treated by both parties as finished, although the value has been paid (k). In these cases assumpsit upon the contract is the remedy. In other respects, trover in general lies for the conversion of any personal property in which the plaintiff has a general or special property (1); but it does not lie for the conversion of record, because a record is not private property; but it may be supported for the copy of a record, which is private property (m) (1). interest In order to support this action the plaintiff must, at the time of the con- 2dly. The version (n), have had a complete property, either general or special (2), in plaintiff's the chattel; and also the actual possession (3), or the right to the immediate possession of it (o) (4). (g) 2 M. & Sel. 397; 2 Campb. 240; 5 Taunt. 617; 4 Taunt. 644. (h) 5 Taunt. 176; 13 East, 522. (i) 5 B. & C. 857; 8 D. & R. 693, S. C.; 6 B. & C. 388; 9 D. & R. 293, S. C.; 8 B. & C. 277; 2 M. & R. 292, S. C.; 9 B. & C. 145. () 1 Taunt. 318; 5 Bing. 270; see 7 B. & C. 26; 9 D. & R. 791, S. C. (1) For what it lies in general, See Com. Dig. Action, Case, Trover, C.; Bac. Ab. Trover, D.; Vin. Ab. Action, Trover, K.; Bul. N. P. 32 to 49. (m) Hardr. 111. (n) 2 T. R. 750; 4 Bing. 106. (0) 2 Saund. 47 a, note 1; ante, 182, 139; Selw. N. P. Trover; 4 B. & C. 941; 7 D. & R. 407, S. C. (1) As to trover for the title deeds of an estate, bonds, bills of exchange, &c., see Yea v. Field, 2 Term Rep. 1708; Towle v. Lovett, 6 Mass. 394; Arnold v. Jaffrayson, 2 Salk. 654; Goggesly v. Cuthbert, 2 New, 170; Benjamin v. Bank of England, 3 Campb. 417; Kingman v. Pierce, 17 Mass. 247; Day v. Whitney, 1 Pick. 503; Jarvis v. Rogers, 15 Mass. 389; Petit v. Bouju, 1 Missou. 64; Besherer v. Swicher, 2 Penn. 748; Sawyer v. Baldwin, 11 Pick. 492; Stebbins v. Jennings, 10 Pick. 172; Sudbury v. Stearns, 21 Pick. 148; Tilden v. Brown, 14 Vermont, 164; Pierce v. Gilson, 9 Vermout. 216; Ladd v. Hill, 4 ib. 164; Mercer v. Jones, Id. 477; Todd v. Crookshanks, 3 John. 432; Murray v. Burling, 10 John. 172; Clows v. Hawley, 12 John. 481; Comparet v. Burr, 5 Blackf. 419; Moody v. Keener, 7 Porter, 218. (2) Dillenback v. Jerome, 7 Cowen, 294; Oridone v. Colley, 2 N. Hamp. 66; Debow v. Colfax, 5 Halst. 128. But it is not necessary that the plaintiff's interest in the chattel should have continued until the commencement of the suit. Barton v. Dunning, 6 Blackf. 209. Grady v. Newby, 6 Black f. 442. When on a sale of goods the property vests in the purchaser so that he may maintain trover against the vender, see Selw. N. P. 1269, 1270. 2 Esp. Dig. 40; Owenson v. Morse, 7 Term Rep. 60; Hanson v. Meyer, 6 East, 614; White house v. Frost, 12 East, 614; Austin v. Craven, 4 Taunt. 644; Zwinger v. Samuda, 1 Moore, 12; 7 Taunt. 265; Chapman v. Searle, 3 Pick. 38; Farmer's Bank v. McKee, 2 Barr, 318; Jones v. Morris, 7 Iredell, 370. Further as to the prop erty in the plaintiff requisite to support this action, see Hunter v. Rice, 15 East, 100; Heyl v. Burling, 1 Caines, 14; Hostler v. Skull, Taylor, 152; Floyd v. Day, 3 Mass. 403. (3) Vide Smith v. Plomer, 15 East, 607. In trover, possession whether rightfully or wrongfully obtained, is a sufficient title in the plaintiff as against a mere stranger. Knapp v. Winchester, 11 Vermont, 351; Swift v. Mosely, 10 ib. 208. See Coffin v. Anderson, 4 Blackf. 397, 410; Duncan v. Spear, 11 Wend. 54; Hall v. Amos, 5 Monroe, 89. (4) Fairbanks v. Phelps, 22 Pick. 535; Hunt v. Holton, 13 Pick. 216; Foster v. Gorten, 5 Pick. 185. The plaintiff must show a right to the possession at the time of the conversion. Burton . Tannehill, 6 Blackf. 470; Caldwell v. Cowan, 9 Yeagher, 262; Gage v. Allison, 1 Brevard, 495; Andrews v. Shaw, 4 Dev. 70; Grady v. Newby, 6 Blackf. 442; Lewis v. Mobley, 4 Dev. & Batt. 323; Redman v. Gould, 7 Blackf. 361. In the case of a general as well as special property, the action may in most cases be brought either by the general or special owner, and judgment obtained by one is a bar to an action by the other. Smith v. James, 7 Cowen, 828. In this action the defendant may show title in a stranger paramount to that of the plaintiff. Kenedy v. Strong, 14 John. 132. See Williams v. Belthany, 2 Rep. Con. Ct. 415; Jones v. Sinclair, 2 N. Hamp. 319. A mortgagee in possession of chattels may sustain trover for their conversion. II TROVER. tiff's inte rest. First. It may be premised that it is not essential to the support of this But 2. The plain- action, that the absolute ownership and special property or interests should exist in the same person: either will suffice to support this action (p). we shall presently remark, that if there be an outstanding special property in another, the general owner should sue in case for the injury to his reversion, not in trover for the value of the goods (q). 1st. Of an absolute property in the goods. [ *149 ] Without an absolute or special property, this action cannot be maintained. A right of immediate possession before or at the time of the conversion is essential (r) (1). Therefore, as we have seen, trover cannot be supported by a party in a suit for a record (s). Nor can a tenant in tail, expectant on the determination of an estate for life, without impeachment for waste, bring trover for timber which grew upon and was severed from the estate, for the tenant for life has a right to the trees immediately they are cut down (1). And the trustees of an estate per autre vie cannot maintain trover for trees felled upon the estate, for when felled the trees belonged to the owner of the inheritance (). A landlord has, generally speaking, in legal consideration, even during the term, the possession of the timber growing on the estate, if it be excepted in the lease; so that he may in such a case maintain trespass even during the term, if it be cut down; and even if the timber be not excepted in the lease, the lessor has so far the possession of it when cut down by another, though cut pending the term that if it be carried away he may maintain trespass or trover; the interest of the lessee in the trees determining instantly they are cut down (x) (2). But where a landlord during the term wrongfully cut down (p) Per Lawrence, J. T. K. 398. (q) Post, 154; ante, 132. (r) Bloxam v. Sanders, 4 Bar. & Cres. 941; 7 D. & R. 407, S. C. (s) Supra; Hard. 111. (t) 1 T. R. 55. (u) 1 New Rep. 25. (x) 7 T. R. 13; 2 M. & Sel. 499, 500; 1 Saund. 322, n. 5; Vin. Ab. Trespass, S. pl. 10; 1 Taunt. 191. Reynolds v. Shulor, 5 Cowen, 323; Wolf v. O'Farrel, Const. Ct. S. C. 141. So he may sustain trover for a conversion of them by a stranger, whilst in the possession of the mortgagor. Snyder v. Hilt, 2 Dana, 204. A mortgage of goods is a transfer which vests the general property in the mortgagee; and when there is no express stipulation to the contrary, the right of possession follows the right of property, and the mortgagee may maintain trespass against one who wrongfully takes the goods away. Brackett v. Bullard, 12 Metcalf, 308; Holly v. Huggeford, 8 Pick. 73. But a mere removal of mortgaged property in good faith, at the request of the mortgagor who was in possession, will not be a conversion of it. Strickland v. Bassett, 20 Pick. 415; Burditt v. Hunt, 25 Maine, 419. A mortgagee may sustain trover against the mortgagor after the title of the mortgagee has become absolute, upon the refusal of the mortgagor to deliver them Gifford v. Ford, 5 Vermont, 532. And so the mortgagee may maintain trover against the mortgagor before the title becomes absolute, where there is no agreement that the mortgagor shall retain possession. Ripley v. Dolbier, 6 Shepley, 382. If the mortgagor of goods, who is intrusted with the possession, intermix them, purposely or through want of proper care, with his own goods, so that they cannot be distinguished, and consign them for sale to a third person who sells them, the mortgagee is entitled to recover of the consignee the value of the whole in trover. Willard v. Rice, 11 Metcalf, 493. See White v. Phelps, 12 N. Hamp. 382. (1) See ante, 148, in note; Burton v. Tannehill, 6 Blackf. 470 Caldwell v. Cowan, 9 Yerger, 262; Gage v. Allison, 1 Brevard, 495; Andrews v. Shaw, 4 Dev. 70; Fairbanks v. Phelps, 22 Pick. 535; Grady v. Newby, 6 Blackf. 442. If one who has a life estate in a personal chattel exchanges it with a third person as his absolute property, he, who has the interest in remainder, cannot maintain trover for the conversion. Nations v. Hawkins, 11 Alabama, 859. (2) Mather v. Ministers of Trinity Church, 3 Serg. & R. 509. See Baker v. Howell, 6 Serg. & R. 476. It has been decided in Maine, that where a tenant at will erected a dwelling house, and other buildings on the land, with the express assent of the landlord, and died, and his administrator sold them to a stranger, the purchaser might maintain trover for them against the owner of the land. Osgood v. Howard, 6 Greenl. 452. Shult v. Barker, 12 Serg. & R. 272. Vide Davies v. Connop, 1 Price (Exch.) 57. Trover tiff's inte oak pollards, unfit for timber, it was decided that, as the tenant for life II. TROVER or years would have been entitled to them if they had been blown down, 2. The plain and was entitled to the usufruct of them during the term, the lessor could rest. not, by his own wrong, acquire a right to the pollards; and therefore could not, nor could his vendee, sue the tenant for taking them away (y). The property in title-deeds generally accompanies the ownership of the estate; and therefore the person who was entitled to the estate at the time of the wrongful detention of or injury to the deeds, should be the plaintiff (z). The absolute and general owner of goods may maintain trover, although he had sold or bailed them under a void contract, as to a married woman, because he still retains a present right (a). But if the owner has bailed the goods to the defendant, and before a conversion of the goods by the latter the bailor sells them, or otherwise cease to be the owner, the action should be brought in the name of the person who was the proprietor at the time of the conversion (b). A party who purchases goods under a distress for rent, valid though irregular, may maintain trover (c); and where A. sold goods to B. which were wrongfully in C.'s possession, and B. paid for them, and on the latter demanding the goods, and informing C. of the sale, the latter said he should not deliver them to any person; whereupon A. and B. rescinded the sale, and the price was repaid, it was held that A. might sue C. in trover (d). The verbal gift of a chattel, without actual delivery, is not sufficient to pass the property to the donee, so as to enable him to sue the donor (e); although it may perhaps give the donee a sufficient special interest to enable him to sue a mere wrong-doer (ƒ). Nor is an award that a chattel should be delivered by A. to B., on the former being paid a sum of money sufficient, per se, to pass the property, and entitle B. to maintain trover, although he tenders the money, it being refused by A. (g). And we have already observed (h), that in the case of a sale of goods there must be a specific right to some particular goods severed and distinguished from others; and if there remain to be done upon the contract some act to ascertain the quantity or price, the vendee cannot maintain trover until that act be done (i). Where goods stolen were purchased in market overt, and sold by the purchaser before the felon was convicted, it was decided that the owner prosecuting to conviction could not maintain trover against the purchaser under the statute (k), which gives restitution to the owner who prosecutes the felon to conviction, although he gave to the purchaser notice of the robbery while they were in his possession; for the property being altered by the sale in market overt, was not revested in the owner until the conviction of the felon, but the defendant had parted with the possession before that time, and therefore could not be said to have converted the lies against an outgoing tenant, for corn cut by him, after the expiration of his term, though sown by him before that time, under the notion of being entitled to an away-going crop. Davies v. Connop, 1 Price (Exch.) 53; Nelson v. Burt, 15 Mass. 201. *150 J tiff's interest. II. TROVER. plaintiff's gooods (1) (1). But if the sale was not in market overt, then if 2. The plain- the purchaser sell them again in market overt before conviction of the felon, and such purchaser had notice of the felony whilst the goods were in his possession, he will be liable to an action of trover (m) (2). The statute (n) is confined to cases of felony; therefore where goods are obtained from a person by false pretences, and passed to another for a valuable consideration, the original owner is not entitled to them upon conviction of the offender; and if he has got possession of them, trover will [*151] lie at the *suit of the purchaser (o). And if goods are obtained by false pretences under color of a purchase, the vendee or his assignee acquires no property, and after demand may be sued in trover (p) (3). The action does not lie to recover the value of goods delivered by the plaintiff, under or in furtherance of an illegal contract, to which he is a party or privy (q). The pleadings in gene ral, &c. Secondly. So a person having a special property in the goods may support trover against a stranger who takes them out of his actual possession; as a sheriff (r) (4); a carrier (s) (5); a factor; a warehouse-man (t); consignee (6); a pawnee; or trustee; or an agister of cattle; or a gratuitous bailee (u) (7); or any person who is responsible over to his principal (x) (8) (1) 2 Term Rep. 750. The pawnee of (m) Peer v. Humphrey, 1 Har. & Woll. 28. (1) See Piscataqua Bank v. Turnley, Miles, 313. (t) 1 M. & Sel. 147. (u) 1 B. & Ald. 59. (x) 2 Saund. 47 b; 11 East, 626. (2) An auctioneer, who innocently sells stolen goods, is liable to the owner in an action of trover. Hoffman v. Carow, 22 Wend. 285. (3) Trover lies against a fraudulent purchaser, or his vendee with notice, without a previous demand, or a tender of a note given in payment before the time of trial. Thurston v. Blanchard, 22 Pick. 18; Stevens v. Austin, 1 Metcalf, 557; Greene v. Russell, 5 Hill, 183. Where goods are obtained under an invalid contract, trover will not lie while any action founded on the existence of the contract is pending. Kimball v. Cunningham, 4 Mass. 502; Peters v. Ballister, 3 Pick. 495. But where it is discontinued it will not bar an action of trover. Peters v. Ballister, 3 Pick, 495. Trover does not lie in the case of a fraudulent exchange without a return of all the property received. Kimball v. Cunningham, 4 Mass. 502. Trover lies for goods which a creditor has received of his debtor, by fraud with an intent to apply them in satisfaction of his debt, the property not being changed. Woodworth v. Kessain, 15 John. 186. Trover lies against a person receiving goods and selling them, he acts without fraud, and ignorance of the rights of the true owner. Everett v. Coffin, 6 Wend. 603. (4) 7 Cowen, 297. Vide Barker v. Miller, 6 John. 195; Catlin v. Jackson, 8 John. 548; Hotchkiss v. M'Vickar, 12 John. 403; Brownell v. Manchester, 1 Pick. 232; Caldwell v. Eaton, 5 Mass. 399; Blackley v. Sheldon, 7 John. 32; Pettes v. Marsh, 15 Vermont, 454. But it has been held in New Jersey, that a sheriff cannot maintain trover for goods by virtue of a fieri facias, and a levy thereon, without he has made a particular inventory of the goods, or has taken actual possession of them. Lloyd v. Wychoff, 6 Halst. 218; Brain v. Strait, Dudley, S. C. 237. See Dennie v. Harris, 9 Pick. 364; Amadon v. Myers, 6 Vermont, 308; Lowry v. Walker, 5 id. 181. See also Yates v. St. John, 13 Wend, 74. The receiptor of property attached, who has the actual possession of it for safe keeping may sustain trover for it against a third person, who takes it out of bis possession, having no color or right. Thayer v. Hutchinson, 13 Vermont, 504. But see as to the keeper or receiptor to the sheriff, Ludden v. Leavitt, 9 Mass. 104; Warren t. Leland, ib. 265; Commonwealth v. Morse, 14 ib. 217; Poole v. Symons, 1 N. Hamp. 289. (5) 7 Cowen, 297. (6) Smith v. James, 7 Cowen, 329; Everett v. Saltus, 15 Wend. 474. (7) Faulkner v. Brown, 13 Wend. 63. The finder of a chattel has a special property in it, and may sustain trover against any one who shall convert it. except the true owner. M'Laughlin v Waite, 9 Cowen, 670; Clarke v. Malory, 3 Harring, 68. (8) Trovillo v. Hilford, 6 Watts. 472. |