in pursuance of such devices thereby becomes a purchaser, or that a sale, even though one was intended, has resulted from the transaction. If there was in fact no purchaser, there was no de facto sale. No contract resulted which required avoidance. The transaction was void. Whenever property is obtained from the owner by fraud, it is therefore important to determine whether the facts show a sale to the party guilty of the fraud, or a mere delivery of it into his possession as a result of the fraudulent devices practiced. If the owner of goods is induced by fraudulent representations to deliver property to an irresponsible purchaser, in pursuance of a contract of sale to him, and such purchaser, while in possession, transfers it for a valuable consideration to a third person, who acts in good faith, without notice of the fraud, the title of the good-faith purchaser will prevail over that of the first owner. Curme v. Rauh, 100 Ind. 247; Parrish v. Thurston, 87 Ind. 437.

In the case before us, both upon the facts assumed in the instruction, and as they appear in the evidence, there was no contract of sale to the spurious representative of the firm, one of whose members he falsely personated. He did not propose to buy on his own account, nor did the plaintiff contemplate a sale to him. The plaintiff contracted upon the supposition that he was selling to Fort, Johnson & Co., through the agency of a member of that firm. He did not agree to sell or contemplate a sale to any other person, nor did the person with whom he negotiated propose to purchase for himself or any other than Fort, Johnson & Co. The transaction resulted in a misadventure. No sale was made to Fort, Johnson & Co., and, as no other was proposed or contemplated, none was made. In the language of the instruction given, the contract was wholly void. By means of a trick the naked possession of his property had been delivered to another by the plaintiff, while the title and ownership remained in him after the delivering, the same as before. No one can transfer a greater right or better title to property than he possesses himself. It follows necessarily, when Fort, Johnson & Co. sold the cattle to Alexander & Co., at the request and for the benefit of the fraudulent possessor, they sold no better or greater right than he had. When, therefore, Alexander & Co. sold the cattle, they sold property to which the plaintiff had a perfect title, and when they received the proceeds of such sale they received money which belonged to the plaintiff. This amounted to a conversion of the plaintiff's property, for which they were liable. Hamet v. Letcher, 37 Ohio St. 356; Barker v. Dinsmore, 72 Pa. St. 427; Moody v. Blake, 117 Mass. 23; Cundy v. Lindsay, 3 App. Cas. 459.

In McCombie v. Davies, 6 East, 540, Lord ELLENBOROUGH said:

"According to Lord HOLT in Baldwin v. Cole, 6 Mod. 212, the very assuming to one's self the property and right of disposing of another man's goods is a conversion; and certainly a man is guilty of conversion who takes my property by assignment from another who has no authority to dispose of it."

So, in Hyde v. Noble, 13 N. H. 494, it was held that one who claimed a right to property under a purchase from a person who had no title or power to sell, was liable for a conversion.

The cattle were the property of the plaintiff, and their appropriation by Alexander & Co. was without authority. The unauthorized appropriation of another's property is, as a rule, sufficient to enable the owner to maintain an action for its conversion. A purchase without notice from one who has no title, and no right or apparent authority to transfer the property, will not be a defense.

In Hills v. Snell, 104 Mass. 173, it was said:

"Even an auctioneer or broker who sells property for one who has no title, and passes over to his principal the proceeds, with no knowledge of the defect of title or want of authority, is held liable for its conversion to the real owner. Shearer v. Evans, 89 Ind. 400; Breckenridge v. McAfee, 54 Ind. 141; Curme v. Rauh, supra; Stanley v. Gaylord, 1 Cush. 537; Gilmore v. Newton, 9 Allen, 171; Grunson v. State, 89 Ind. 533.

As upon the facts assumed there was no sale, either absolute or conditional, so much of the second instruction given by the court as referred to a conditional sale was probably not entirely accurate.

The jury were correctly told in the first instruction referred to that if certain facts and representations were proved, the pretended sale was wholly void. In the second, the same facts, substantially, were assumed, and to the facts assumed was added the further proposition that if the sale was upon condition that the title to the property should remain in the plaintiff until the check spoken of was paid, then the sale was conditional, and the plaintiff would be entitled to recover. There was no dispute about the material facts in the case, and as, upon the undisputed facts, there was no sale of any kind, the proposition relating to a conditional sale was wholly immaterial. The court should have so treated it, as well in the instructions given of its own motion, as in those refused upon the request of the defendants. If, however, the instruction given was erroneous, it was because on all the facts assumed in it the law was stated more favorably to the defendants than the rule warrants. If all the facts recited were proved, there was no sale of any kind, and the defendants were liable.

This practically disposes of the instruction prayed by the defendants. The difficulty with the instruction is that it is not predicated upon a state of facts upon which a sale of any kind can be found, or upon which any apparent title, right, or authority of the person who obtained the cattle by fraud can be based. It proceeds upon the theory that the bare delivery of the cattle, under the expectation that they were to be shipped to a firm engaged in selling cattle on commission, would be sufficient to defeat plaintiff's right. We cannot give our assent to this proposition, as applied to the facts in this case. The fact that possession of the plaintiff's property was obtained by the fraudulent practices alluded to, and under circumstances which neither divested nor in any manner affected his title, could invest the wrong-doer with no such apparent authority as to enable him, by any means, to communicate any right or title to another. And this would be so, even though the plaintiff, at the time he delivered the cattle, supposed he had sold them to Fort, Johnson & Co., to be resold by them as commission men or factors. Alexander & Co. can only protect themselves by showing some title, right, or authority, real or apparent, in the ́

fraudulent possessor of the cattle. In brief, the instruction asked, as applied to the undisputed facts, proposes that if possession of the plaintiff's cattle were obtained from him by a person who, by means of false devices, induced in plaintiff's mind the belief that he was selling and delivering them to a responsible firm of commission men, to be resold, when in fact he was not selling them to any one, then the person so obtaining possession had apparent authority to deliver them to the commission men in such manner that they could transfer the title to Alexander & Co., so as to shield them from liability.

The only case brought to our notice which seems to lend any support to this view, is Roach v. Turk, 9 Heisk. 708. The facts in that case were that Turk sent three bales of cotton to Commerce Landing, on the Mississippi, to be shipped to Roach & Co., commission merchants, at Memphis. Ware, a clerk of the shipping agent at the landing, received the cotton in the absence of his principal, and, instead of shipping it in the name of Turk, shipped it in his own name. The commission merchants, without notice of the real owner, sold the cotton and paid the money over to Ware. It was held, overruling an earlier case, that the commission men were not liable to Turk as for a conversion, without a demand for the cotton or its proceeds while it was in their hands. Upon an examination of the case, it will be found that the non-liability of the commission men was predicated upon the fact that they neither had the property, nor the proceeds arising from its sale, in their hands at the time it was demanded of them. Without yielding our assent to the doctrine of the case cited, which we think is opposed by the authorities we have already cited, and many others, we think it clearly distinguishable from the case before us.

The cattle in question were the plaintiff's property when Alexander & Co. received and sold them. The proceeds of the sale remained in their hands when the suit was commenced, and they asserted a right to it adverse to the plaintiff. This, on the doctrine of Roach v. Turk, supra, made them liable as for a conversion.

If, upon the facts assumed in the instruction asked by the defendants in this case, it had appeared that a conditional sale had actually been made, an entirely different question would have been presented. In such a case it might well be, although we decide nothing on the subject, that the purchaser on condition would be clothed with such apparent authority as that the severe rule of law applicable here would not be applied. Possibly, the remedy of the vendor who confers upon another an apparent title by a conditional sale may be restricted to the right to recover the property, and that no one can be held responsible in tort for its conversion, who merely "exercises such dominion over it as is warranted by the authority thus given." Hills v. Snell, 104 Mass. 173; Burbank v. Crooker, 7 Gray, 158; Vincent v. Cornell, 13 Pick. 294.

As there is no error found in the record, the judgment is affirmed, with costs.

ELLIOTT, J., did not participate in the decision of this case.

(105 Ind. 221)

FOLTZ V. KERLIN. 1

Filed January 27, 1886.

1. OFFICE AND OFFICERS-HOLDING TWO OFFICES-POSTMASTER.

The constitution of Indiana prohibits a man from holding two lucrative of fices, either state or national, at the same time. The offices of postmaster and township trustee, being lucrative offices, cannot be held by one person at the same time.

8. SAME-ACCEPTANCE OF A STATE OFFICE DOES NOT VACATE FEDERAL OFFICE. An acceptance of the office of township trustee does not vacate the office of postmaster, for the reason that the general rule, that the acceptance of one office vacates another, does not apply where the offices are held under different sovereignties.

8. SAME-STATE AND FEDERAL OFFICERS - JURISDICTION AND AUTHORITY OF STATE COURTS.

A state court cannot expel from office persons appointed by the federal government; but where an officer elected under the state laws enters into the office to which he is elected, and persists in retaining the federal office, the state courts will expel him from that held under the laws of the state.

Appeal from White circuit court.

M. M. Sill and T. F. Palmer, for appellant.

Reynolds & Sellers and D. D. Dale, for appellee.

ELLIOTT, J. John G. Kerlin, the appellee, received a majority of the votes cast at an election held on the seventh day of April, 1883, for the office of trustee of Princeton township. The term of the office to which he was elected began on the fourteenth day of April, 1883, and on that day he entered into the office. At the time he was elected he was the postmaster at the town of Seafield, in that township, and was receiving, as such officer, a compensation of more than $200 per annum. He did not vacate the office of postmaster, but, on the contrary, he retained it, and was holding it at the time this action was instituted. The facts, of which we have given a synopsis, are stated formally and at length in the appellant's petition, to which the trial court sustained a demurrer.

Our constitution contains a provision prohibiting a citizen from holding two lucrative offices, either federal or state, at the same time. The -provision to which we refer reads thus:

"No person holding a lucrative office or appointment under the United States or under this state shall be entitled to a seat in the general assembly; nor shall any person hold more than one lucrative office at the same time except as by this constitution expressly permitted: provided, that officers in the militia to which there is attached no annual salary, and the office of deputy postmaster, where the annual compensation does not exceed ninety dollars per annum, shall not be deemed lucrative; and provided, also, that counties containing less than one thousand polls may confer the office of clerk and auditor, or any two of said offices, upon the same person.

"

There is in our minds no doubt that the constitution applies to all lucrative national and state offices of whatsoever class, except deputy postmasters whose compensation does not exceed $90 per annum, since any other ruling would render nugatory the plain words of the instrument, and make the provision respecting deputy postmasters either meaningless or absurd.

'Rehearing denied, 5 N. E. 672.

It is quite evident that the framers of the constitution intended that postmasters should be regarded as federal officers; but, on principle, independent of the language of that instrument, there can be no contrariety of opinion upon this subject. They are officers within the definition given by the authorities. "An office," says the supreme court of the United States, "is a public station or employment conferred by the government. The term embraces the ideas of tenure, duration, emolument, and duties." U. S. v. Hartwell, 6 Wall. 385. In Henly v. Mayor, 5 Bing. 91, BEST, C. J., said: "In my opinion, every one who is appointed to discharge a public duty, and receives compensation in whatever shape from the crown or otherwise, is constituted a public officer." In various forms this definition is given in many cases. Case of Wood, 2 Cow. 1, note, p. 30; People v. Common Council, 77 N. Y. 503; S. C. 33 Amer. Rep. 659. But there are cases directly declaring that postmasters are public officers. Rodman v. Harcourt, 4 B. Mon. 224; Hoglan v. Carpenter, 4 Bush, 89; Patterson v. Miller, 2 Metc. 493; High, Extr. Rem. § 95.

In all the decisions upon constitutional provisions similar to ours that we have been able to find, it is laid down for law that one who holds a federal office, great or small, to which compensation is attached, cannot at the same time be lawfully the incumbent of a lucrative office under the statute of the state. In re Corliss, 11 R. I. 638; State v. De Gress, 53 Tex. 387; Davenport v. Mayor, 67 N. Y. 456; State v. Clark, 3 Nev. 506. If the office of township trustee is a lucrative one, within the meaning of the constitution, the appellee had no right in it while holding the federal office of postmaster, and that it is a lucrative office is settled by our decisions. Dailey v. State, 8 Blackf. 329; Creighton v. Piper, 14 Ind. 182; Platt v. Kirk, 44 Ind. 401. Both offices the appellee could not hold, and from one or the other he must be ousted.

The state courts have authority to expel him from the office of township trustee, but not from the office held by appointment from the federal government. Our courts cannot decide upon the right of an appointee of the national government, but they can decide upon the right of one asserting a title to an office under the laws of the state. Within the powers delegated to it, the federal government is supreme, and this necessarily carries the authority to determine upon the qualification of its officers and their right to hold office. Rodman v. Harcourt, supra; Hoglan v. Carpenter, supra. As our courts have no authority to expel an incumbent from a federal office, they are powerless to control a man who attempts to defy our constitution by holding both a federal and a state office, unless they have authority to expel him from an office held under the laws of the state, notwithstanding the fact that he may have entered into the state office last. We entertain no doubt that our courts do possess power to oust a man from a state office who undertakes to hold it in defiance of our constitution. This doctrine is ably and decisively declared in the case last cited. If a man persists in clinging to a federal office, our courts can and will compel him to loosen his hold upon an office created by the state. If he perseveres in his effort to vio.