467. Conversion of chattcls.-If a man, who has no right to meddle with goods at all, takes them and removes them from

as against the defendant. Bartlett v. Hoyt, 29 (N. H.) 317; Green v. Clark, (N. Y.) 243 Clapp v. Glidden, 39 Me. 348; Jeffries v. Gr. Western R. R. Co., 34 Eng. Law and Eq. 122; Tuthill v. Wheeler, 6 Barb. N. Y. 362; Sheldon v. Soper, 14 John. (N. Y.) 352; Putnam v. Wiley, 8 Id. 432; Clark v. Draper, 19 (N. H.) 419; Ames v. Palmer, 42 Me. 197; Van Brunt v. Schenck, 11 John. (N. Y.) 377; Hail v. Burlong, 1 Cai. Cas. (N. Y.) 14; 5 Bacon's Abridgment, 258; Berry v. Heard, Cro. Car. 242; Buller's Nisi Prius, 33. But it is not essential that the absolute title should be in him. It is enough if he stands in such a relation to the property that he is entitled to the possession of it, and will ultimately be liable to the true owner for its value unless it is returned to him.

Thus if A has goods belonging to B in his possession upon which he has a lien either for agistment or any other cause, which is a valid hien, either by operation of law, or contract between him and B, he may maintain trover against any person who wrongfully takes, and withholds it from his possession. Van Bokkelin v. Ingersoll, 5 Wend. (N. Y.) 315; so naked possession, whether rightfully or wrongfully obtained, is sufficient as against a merc trespasser; Knapp v. Winchester, II Vt. 351; Coffin v. Anderson, 4 Black. (Ind.) 375; it is enough if he has the right possession as against the defendant, Fairbanks v. Phelps, 22 Pick. (Mass.) 535; Grady v. Newby, 6 Blackf. (Ind.) 442; Caldwell v. Cowan, 9 Yerg. (Tenn.) 262; and where the plaintiff has the title and right to possession, the fact that he has never had the property in his possession is of no consequence. Possession is only material where there is not actual title in the plaintiff; Hall v. Amos, 5 Monr. (Ky.) 86; as if he holds it as bailee; as if A has B's horse in his possession which he has hired of B for a time, he may maintain trover therefor against any one who takes and withholds it from him; Hutton v. Arnatt, 51 Ill. 198; so a common carrier who has received goods to transport, may maintain trover against any one who wrongfully comes into or withholds the possession thereof before he has delivered them to the consignee; Hudson River Railroad Co. v. Lounsberry, 25 Barb. (N. Y.) 597. So a person who finds property, has a right to its possession against every one except the real owner. Strange, 505; Buller's Nisi Prius, 33; Matthews v. Harsell, 1 E. D. Smith (N. Y.) 522; Clark v. Mallory, 3 Harr. (Del.) 68; McLaughlin v. Waite, 9 Cowen (N. Y.) 670; Brandon v. Huntsville Bank, 1 Stew. (Ala.) 320; an heir whose father has been dead several years, where no will was made, and no administrator has been appointed, may maintain trover for personal property belonging to his father's estate, which is withheld by another. Hyde v. Stone, 7 Wend. (N. Y.) 354; Wood v. Bagley, 13 id. 453; Beecher v. Crouse, 19 Id. 306. Mere possession of goods is sufficient as against a wrongdoer. Jeffries v. Great Western Railway Co., 34 Eng. Law Fq. 122; Carter v. Bennett 4 Fla. 283; an agister may bring trover for cattle taken from his possession, Betts v. Mouser, Wright (Penn.) 552; but possession as the servant of the owner, even though it be under a contract to purchase, has been held insufficient. Tuthill v. Wheeler, 6 Barb. (N. Y.) 362; The real test is, whether the plaintiff had a right to the possession of the goods at the time of the bringing of the action. If so he can maintain it, otherwise he cannot. Clapp v. Glidden, 39 (Me.) 448; Clark v. Draper, 19 (N. H.) 419; Thus in Northum v. Borden, 32 Eng. Law Eq. 559, the plaintiff went upon premises under a license from the owner to search for minerals. He dug pits and threw up sand and gravel mixed with ore, which the defendant took away. Before the sand, gravel and minerals were taken away the plaintiff took a license to dig for minerals upon the premises in question, by

one place to another, an action may be maintained against him for a trespass, but he is not guilty of a conversion of them,

deed. It was held that he had such a property in the materials that he could maintain trover therefor. See also Bartlett v. Hoyt, 29 N. H. 317; Green v. Clark, N. Y. 343.

A sheriff who has taken goods upon an attachment, may maintain trover for them against any one taking them unlawfully from his possession. 2 Saunders, 47; Lockwood v Ball, Conn. 322; Brownell v. Manchester, 1 Pick. (Mass.) 232; Badlum v. Tucker, 1 Id. 389; Blackly v. Sheldon, 7 John. (N. Y.) 32; but quere if the real owner takes them peaceably, being other than the debtor in the attachment, can he not set up his ownership as a bar to the action? But he must have taken them into his actual possession. Dennie v. Harris, 9 Pick. (Mass.) 364; but see Carr v. Farley, 3 Fairfax, (Me.) 328; or have taken such possession thereof as the statute prescribes. Lowry v. Walker, 5 Vt. 181.

So a lessee of premises for life, may maintain trover against any person who carries away materials of a building upon the premises that has fallen down, though the general property is in the reversioner," for," says Buller in his Nisi Prius, 33,“he has a special property to make use of the same (as if he should rebuild).” So where a lord seizes an estray or wreck, which becomes his, unless claimed within a year and a day, he may maintain trover 'herefor against a stranger before the year and a day has elapsed, "because," says Buller, p. 33, "he has a possession that will turn into a property," and the same principle applies to all cases where the real owner is unknown but the property is in the possession of a finder. He is entitled to hold it as against every person but the true owner, and has such a special property and right of possession as enables him to maintain trover therefor. Wyman v. Hurlburt, 12 Ohio, 81. In order to maintain trover the possession must be wrongful, or there must have been an unlawful conversion. If goods are in the hands of another person as an agent, or a debtor, with authority to sell, trover cannot be maintained, even though he disobeys instructions, and sells at a less price than authorized to do, nor even though he appropriates the money. In order to maintain the action, the defendant must have been in such a position that he had no title to the goods, and could give none to those to whom he sold. Sargeant v. Blunt, 16 John. (N. Y.) 74; Cairnes v. Bleecker, 12 Ind. 300; Kellogg v. Fox, 46 Vt. So where goods are delivered to another person for a special purpose, as to a carrier for transportation and delivery to a third person, or to an innkeeper for safe-keeping, trover will not lie for his mere negligence, whereby the goods are lost. Hawkins v. Hoffman, 6 Hill (N. Y.) 586. But if he has actually converted the goods, or having them in his possession, refuses to deliver them on demand, the rule is otherwise. But if the goods are injured, lost or stolen, an action on the case for negligence is the only remedy. Hudson River R. R. Co. v. Lounsberry, 25 Barb. (N. Y.) 597; Anonymous, 2 Salk. 655; Russ v. Johnson, 5 Burr, 2825; Packard v. Getman, 4 Wend. (N. Y.) 613; Hallenbake v. Fish, 8 Id. 547; Transportation Co. v. Sellick, 52 Ill. 249; Merriam v. Yeager, 2 B. Mon. (Ky.) 339. But if the goods are delivered to the wrong person through mistake, trover will lie. Ill. Central R. R. Co. v. Parks, 54 Ill. 274. Or if he refuses to deliver on demand on payment of stipulated charges. Transportation Co. v. Sellick, 52 Ill. 247.

In an action of trover, the defendant may share property in himself, or in a third person. Ratan v. Fletcher, 15 John. (N. Y.) 207. Or that he has a lien upon it. Everett v. Coffin, 6 Wend. (N. Y.) 603. But if he denies the plaintiff's title and sets up a title in himself, he is treated as having waived his lien. Everett v. Saltus, 20 Wend. (N. Y.) 267 ; Halbrook v. Wight, 24 Id. 167; or that he holds it under legal

unless he removed the goods for the purpose of taking them away from the plaintiff, or of exercising some dominion or process, or as the legal custodian under such process. Jenner v. Jolliffe, 9 John. (N. Y.) 381; but the plaintiff may defeat such defence by showing that the attachment is void. Mattison v. Bancus, Hill & D.'s Sup. (N. Y.) 34. Trover lies for previous damages, even though he has regained possession of the property. Murray v. Burling, 10 John. 172.

Trover lies for wild geese which have been tamed, but after having become domesticated, stray away, but have no! regained their natural liberty. But the necessary expenses to which the party has been put in keeping, he must be tendered. Amory v. Flynn, 10 John. (N. Y.) 102; Henly v. Walsh, 2 Salk. 686; so for timber wrongfully cut upon the lands of another, even in the hands of a bona ji le purchaser. Mains v. Wait, 3 Wend. (N. Y.) 104; so against a landlord for a wrongful distress. Connah v. Hale, 23 Wend. (N. Y.) 462; but not for grass or vegetables caten by cattle that break into one's inclosure. Smith v. Archer, 53 Ill., 241.

Trover does not lie for a fixture until it is severed, but a house erected by one upon the lands of another under a license, set upon blocks and not annexed to the freehold, is personal property, and traver will lie against the owner of the land therefor, if he refuses to allow it to be taken away. Pullen v. Bell, 40 Me. 314; Parker v. Godard, 39 Me. 144; Hinckley v. Baxter, 13 Allen (Mass.) 139; Davis v. Taylor, 41 Ill. 405 ; Adams v. Godard, 48 Me. 212; Overton v. Williston, 31 Penn. St. 155; Crippen v. Morrison, 13 Mich. 23; Dame v. Dame, 38 N. H., 429; but if the person in whose possession personal property is found does not set up title thereto in himself, or forbid the owner from taking it, the fact that he does not aid the plaintiff in taking his property, or actually deliver it to him, will not amount to a conversion, even though the property is in a building belonging to the defendant, and since the property has been placed there he has put a new lock on the door, and keeps the door locked; if he interposes no other obstacle to its removal. Poor v. Daukham, 104 Mass. 309; Milgate v. Kebble, 3 M. and G. 100.

Even where machinery is obtained by fraud, yet, after it has been put into and affixed to a mill, it becomes incorporated with it as a part of the real estate, and the use of it in that state does not constitute a conversion for which trover will lie. Woodruffle Iron Works v. Adams, 37 Conn. 233. So where the owner or occupant of a house or building has the property of another therein and refuses to permit the owner to enter to take it away, he is liable in trover for the goods. Walker v. Clyde, to C. B. (N. S.) 381. But does it lie for standing trees, or gras growing, or crops unharvested, or ores mined from the earth, but where they are severed from the freehold, they become personal chattels and trover lies therefor against one taking them without authority. Sampson v. Hammond, 4 Cal. 184; Whidden v. Secle, 40 Me. 247; Branch v. Morrison, 5 Jones (N. C.) 15; Forsyth v. Wells, 41 Penn. St. 291; so it lies for loads of earth taken and carried away from the plaintiff's land. Riley v. Boston Water Power Co. 11 Cish. (Mass.) II; so for manure lying upon the ground and not incorporated with the soil. Pinkham v. Gear, 3 N. H. 484; see also Stone v. Proctor, 2 Chip. (Vt.) 116.

In Strong v. Doyle, 110 Mass. 92, the defendant purchased a farm of the plaintiff, upon which, at the time of purchase, was a large quantity of manare, lying upon the surface of the land in piles. The manure was not included in the sale, but it was understood that the plaintiff would put the manure up at auction, and the defendant was to have it if he was the highest bidder. After the conveyance of the farm, the defendant forbid the sale, claimed the manure as his own, and spread it over the land. The case was distinguished from Fay v. Muzzey, 13 Gray (Mass.) 53, and the court

control over them for the benefit of himself or of some other person (m). Thus, where the plaintiff and defendant, who

(m) See Falke v. Fletcher, 34 Law J., C. P. 146.

held that while manure made in the ordinary course of husbandry would, in the absence of special agreement to the contrary, pass with the land, yet where there is a reservation even by parol, it is binding, and the title thereto does not pass. Noble v. Sylvester, 42 Vt. 146; Ford v. Cobb, 20 N. Y. 344; Roppo v.. Barker, 4 Pick. (Mass.) 239; Hallen v. Runder, 16 M. & K. 266; Bostwick v. Leach, 3 Day (Coun.) 475; or for a chose in action, as a promissory note, in the hands of a person having no lien thereon, or in the hands of the payee after it 15 pul, Kingman v. Pierce, 17 Mass. 247; Jarvis v. Rogers, 15 Id. 38); Seago V. Pomeroy, 46 Ga. 227; Lowermore v. Berry, 19 Ala 130; Allison v. King, 25 Iowa, 56; Todd v. Cruikshanks, 3 John. (N. Y.) 432; Tucker v. J wet, 35 Conn. 563; though never actually delivered to him. Winniger v. Banning, 7 Minn. 274; so for a note in the hand of the promissor, obtained through fraud. Nettleton v. Riggs, 1 Root (Conn.) 125; so for a certificate of stock, but not for a share of stock. Neiler v. Kelly, 69 Penn. St. 403; Miller v. Thompson, 60 Me. 322; for land scrip, Nelson v King, 25 Texas, 655; for bonds, deeds or other specialties, Climes v. Hanley, 12 John. (N. Y.) 484; Miller v. Thompson, ante; Carver v. Creque, 46 Barb. (N. Y.) 507; a certificate of a vessel's registry, Wiley v. Crawford, 1 El. B. and S. 253; indeed, among the very earliest uses to which the action of trover was applied, and before it assumed a distinctive existence as a remedy, as early as Ed. IV. we find it invoked to recover a recognizance of the value of £200. Morley v. Clark, 4 Brownlow, Tr. sur le Case, 77; so trover lies for securities paid or delivered upon a forged order. Griswold v. Judd, 1 Roût (Conn.) 221; so where the property is sold upon condition that the title shall not pass until it is paid for, trover will he even against a bona fide purchaser. In Clark v. Wells, 45 Vt. 4, the plaintiff put new wheels and an axle to a stage wagon, taking a note from the defendant's vendor for the amount charged for the repairs, under an agreement that until the payment the wheels and axle should remain the plaintiff's property. Upon sale of the property to the defendant without the plaintiff's consent, it was held that trover would lie against the purchaser therefor. But it must be remembered that this rule only holds where the property has a distinct existence and is susceptible of ready separation from the chattels with which it has been mingled. But if property so situated is sold with the consent of the vendor, express or implied, trover will not lie, even against the original vendee therecf. Kellogg v. Fox, 45 Vt. 348; so where property upon which a lien exists is attached as the property of the vendee before the lien is fully extinguished, and is lost by the officer attaching, he is liable in trover for the full value of the property. McFarland v. Farmer, 42 N. II. 386; Duncan v. Stone, 45 Vt. 118; Rawson v. Tuel, 47 Me. 506; but see Esty v. Graham, 46 N. H. 169, contra; when a note is taken for the price. But where no note is taken, trover will lie. Fisk v. Ewen, 46 N. H. 173; Howe v. Cleaveland, 39 Barb. (N. Y.) 573 ; Walker v. Clyde, 10 C. B. (N. S.) 381. So where property is obtained from one by fraud, he may rescind the contract and bring trover therefor. The rule is that where one obtains property by fraud, he acquires no title thereto as against the vendor, but if anything has been paid, or given in exchange, it must be tendered back. Strayhorn v. Giles, 22 Ark. 517; Luckey v. Roberts, 25 Conn. 486; Kimball v. Cunningham, 4 Mass. 502; so where an agent purchases property for his principal, and converts it to his own use, he is liable to his principal in trover therefor, even

were porters on the custom-house quay, had cach small boxes in a hut on the quay, for storing small parcels of goods until

without a tender of the price. Foster v. Smith, 2 Cold. (Tenn.) 474. Where the property of several persons becomes so intermingled as to be incapable of identification, without the fault of either owner, they become joint owners of the property, and may maintain trover against a stranger who converts it. Buckley v. Gross, 3 B. S. 566; Vining v. Baker, 53 Me. 544; Hill v. Robinson, 3 Jones (N. C.) 501; Nowlen v. Colt, 6 Hill (N. Y.) 461; but if goods belonging to one person are by him fraudulently mixed with the goods of another, so that the property of either can no longer be distinguished, this constitutes "a confusion of goods," and the whole belong to the innocent owner, and he can maintain trover against an innocent purchaser even, therefor. Bryant v. Ware, 30 Me. 295; Hesseltine v. Stockwell, Id. 237; Colwill v. Reeves, 2 Camp. 575.

Trover lies for money paid by mistake to the wrong person, or for money, as a ten dollar gold coin paid to one by mistake for a small coin, but the actual sum intended to be paid must be first tendered. Chapman v. Cole, 12 Gray (Mass.) 141; or for property stored with a warehouseman on payment of charges. Erwin v. Clark, 13 Mich. 10. In order to maintain trover it is not necessary that the plaintiff should be the absolute owner of the property, but he must either have a legal title thereto, or right of immediate possession. An equitable title or right is not sufficient. Abercrombie v. Bradford, 16 Ala. 560; Ames v. Palmer, 42 Me. 197; Killian v. Carroll, 13 Med. (N. C.) 431; Fulton v. Fulton, 48 Barb. (N. Y.) 581; Burke v. Savage, 13 Allen (Mass.) 408; Landon v. Emmons, 97 Mass. 37; Winship v. Neale, 10 Gray (Mass.) 382; Lamb v. Clark, 30 Vt. 347 ; Clark v. Rideout, 39 N. H. 288; Herring v. Tilghman, 13 Ind. (N. C.) 392. Thus if A as keeper holds goods attached as the property of B, and B executes a bill of sale of the goods to A as security for a debt, and A subsequently, without any other act or agreement, hands the bill of sale back to B, he is not thereby reinvested with the title to the goods, and has not the possession so that he can maintain trover therefor. Middlesworth v. Sedgwick, 10 Cal. 392. Where goods are sold but not delivered, and the terms of sale are not complied with by the buyer, he cannot maintain trover for them. Woodcock v. Farrell, 1 Met. (Ky.) 437; nor is a title acquired under a fraudulent or void conveyance. Hartshorn v. Williams, 31 Ala. 149; Mulligan v. Bailey, 28 Ga. 507; but there must be a special property and right to immediate possession. Ames v. Palmer, 42 Me. 197; and prior actual possession without title is good against a trespasser who has no better title. Cook v. Patterson, 35 Ala. 102; but if neither the plaintiff nor his grantor ever had title, he may be nonsuited. Raines v. Perryman, 29 Ga. 529.

A finder of property has such a special property therein as will uphold an action of trover against every one except the real owner, or one having a better title. Bridges v. Hawkesworth, 7 Eng. Law and Eq. 424; Matthews v. Harsell, 1 E. D. S. (N. Y.) 393; Clark v. Malory, 3 Harring (Del.) 68. But where a servant finds goods in his master's house or shop, while he may maintain trover therefor against a stranger who appropriates them, quere, can he maintain the action against his master? Matthews v. Harsell, ante. So where money or other property not belonging to the owner of the building, or the occupant, is found by a stranger, can the occupant of the premises where the property was found, under. any circumstances, maintain trover against the finder therefor? This question would seem to admit of but one answer, but the language of the court in McAvoy v. Medina, 11 Allen (Mass. 548,) would seem to indicate that if the property is found in such a