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from someone other than the true owner, and the only act relied upon to constitute the conversion is such purchase. This excludes cases involving the question as to whether the taking of possession of property, and using it, or otherwise disposing of it, constitute conversion. However, several cases will be referred to where the buyer accepted delivery of the property, and some cases will be referred to where he exercised some right of ownership over it other than merely purchasing it.

It is a general rule that in order that an act may constitute a conversion of personal property it must amount to a tortious detention of the same from the owner, or the exclusion or defiance of the owner's rights, or a withholding of the possession under a claim of title inconsistent with that of the owner. 26 R. C. L. p. 1110, ¶ 20. By the great weight of authority, the mere act of purchasing personal property from someone other than the true owner, where the buyer acts in good faith, is not such an assumption of ownership or such an intermeddling with the rights of the true owner as to render the buyer liable to the former for the conversion of the property. Jenkins v. Holly (1920) 204 Ala. 519, 86 So. 390; Winchester v. Joslyn (1903) 31 Colo. 220, 102 Am. St. Rep. 30, 72 Pac. 1079; HALL v. MERCHANTS' STATE BANK (reported herewith) ante, 1093; Fuller v. Tabor (1855) 39 Me. 519; Davis v. Buffum (1863) 51 Me. 160; Burnside v. Twitchell (1861) 43 N. H. 390; Matteawan Co. v. Bentley (1852) 13 Barb. (N. Y.) 641; Andrews v. Shattuck (1860) 32 Barb. (N. Y.) 296.

Merely taking and recording a quitclaim deed to land upon which there is a building that belongs to a third person does not, as to the latter, constitute a conversion of the building. Fuller v. Tabor (1855) 39 Me. 519.

In Davis v. Buffum (1863) 51 Me. 160, the court said that giving a bill of sale 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 Andrews v. Shattuck (N. Y.) supra, it is held that where the purchaser of goods never received possession of them, since they were seized by the revenue officers before delivery had been made, he could not be held liable for their conversion merely by showing a purchase of the goods by him and his claim of ownership thereunder.

In Dudley v. Hawley (1863) 40 Barb. (N. Y.) 397, affirmed in (1868) 39 N. Y. 441, 100 Am. Dec. 452, where a jeweler was held liable for the conversion of certain jewelry which he, as the agent of the supposed owners, and to accommodate them, believing in good faith that they were the owners of the property, sold to a third person, turning the receipts of the sale over to them. The court said: "There is a class of cases which hold that the defendant cannot be made liable, either in trespass or any other form of action, for simply receiving goods wrongfully delivered to him by the person in actual possession. . The result of these cases would seem to be that 'while no liability is incurred by the purchase or acceptance of goods, in ignorance of the title of the true owner, unless they are subsequently disposed of to a third person, or appropriated to the use of the vendee or bailee, yet, that the benefit of this principle cannot be claimed without proving that they came to his hands through a delivery made by the wrongdoer, and without any participation in the tort of the latter, other than is necessarily implied in innocently receiving that which there is no right to give.' . . . And the better opinion would seem to be that ignorance of the defendant of the wrong done by the person from whom he receives the goods will not protect him from responsibility for subsequent acts amounting to a conversion or asportation, although done in good faith and without a knowledge of the true state of the title; . . . nor unless his share in the transaction has been purely passive, and has been limited

to accepting and paying for the goods in the usual course of business."

Merely taking a mortgage upon property from someone other than the true owner does not constitute a conversion as against the latter, where the mortgagee never took possession of the property, or in any way intermeddled with it. Matteawan Co. v. Bentley (1852) 13 Barb. (N. Y.) 641.

In the reported case (HALL v. MERCHANTS' STATE BANK) the question is presented whether there is conversion where the holder of a mortgage upon property subject to a prior landlord's lien, in order to avoid foreclosure of the mortgage, accepted a bill of sale of the property from the tenant, without knowledge of the superior landlord's lien. This in and of itself was held not to constitute a conversion so as to render the holder of the bill of sale liable to the landlord in trover.

In Burnside v. Twitchell (1861) 43 N. H. 390, it is held that merely taking a mortgage upon personal property, although the mortgagor is not the true owner, does not constitute conversion by the mortgagee, where the property never is in his possession, and he never uses or appropriates it in any way, or exercises over it any act of ownership other than the mere taking of the mortgage.

In Jenkins v. Holly (1920) 204 Ala. 519, 86 So. 390, in holding that the mortgagee of premises was not liable for conversion of goods stored therein by the owner of the mortgaged premises merely by reason of the fact that he was present when the goods were wrongfully removed by lien holders, the tenant, who was the agent of the owner, having opened the room wherein the goods were stored, the rule is stated that the mere declaration of ownership, unaided or uncomplemented by some act with respect to the control or dominion of the chattel against the true owner's right, giving color and effect to such declaration, is not a conversion of the property.

In Winchester v. Joslyn (1903) 31 Colo. 220, 102 Am. St. Rep. 30, 72 Pac. 1079, it is held that a mere purchase by a pledgee of property, at an unlaw

ful sale by him, of the property, does not constitute a conversion, even though there is by him an assertion of absolute ownership of the property. The court said that the fact that the pledgee asserted title did not constitute a conversion; that "his mere assertion did not in any way deprive the defendant of his right to redeem, and no one is shown to have been injured by the statement."

In Sigel-Campion Live Stock Co. v. Holly (1908) 44 Colo. 580, 101 Pac. 68, where it was sought to hold a commission firm liable to the mortgagee for the conversion of the mortgaged chattels, which were sold by the firm without knowledge of the existence of the mortgage, and there was a question of fact as to whether or not the mortgagee consented to, or acquiesced in, the sale, the rule is stated that the exercise of acts of ownership or dominion over the property of another which are not inconsistent with the true owner's right or title does not constitute a conversion.

In Spackman v. Foster (1883) L. R. 11 Q. B. Div. (Eng.). 99, involving the question of when the Statute of Limitations began to run in favor of a person receiving property as pledgee from someone other than the true owner, and holding that the statute did not run until after a demand by the true owner for the possession of the property, the court said: "The defendant, when he received these deeds, had no knowledge that the person who pledged them had no title to them. He kept them as depositee or bailee, bound to return them on payment of the money he had advanced. He held them against the person who had deposited them, but not against the real owner, and non constat that he would not have given them up if the real owner had demanded them. This does not seem to me to be a conversion. There was no injury to the property which would render it impossible to return it, nor claim of title to it, nor claim to hold it against the owner. The defendant was somewhat in the position of a finder of lost property, and the trover or finding is innocent 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.'

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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 unlawful 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 any mistake. Nothing can be plainer than that 'no one can sell a right when he himself has none to sell, and that every such wrongful sale, by whomsoever made, whether by thief or bailee, acts in derogation of the rights of the owner and in hostility to his authority, and consequently can neither acquire themselves nor confer on the purchaser any right or title of such owner. Mere possession of another man's property affords no evidence that the person having such possession has power to sell it, and he who purchases or intermeddles with it must see to it that he is protected by the authority of one who has power to sell.' . . . A possession taken under a purchase from one without title, and who has himself been guilty of a conversion in disposing of the goods or chattels, is a possession unauthorized and wrongful at its inception, and which the absence of evil intent in the purchaser cannot make rightful or lawful. Such a possession is based on the assumption of a right of property, or a right of dominion over it, derived from the contract of sale; and what is this, in the legal sense, but a wrongful intermeddling or asportation or detention of the property of another? At common law, a conversion is that tort which is committed by a person who deals with chattels not belonging to him, in a manner which is inconsistent with the rights of the lawful owner. . . . The defendants, by taking possession under their purchase, assumed an ownership and exercised a dominion over the property inconsistent with the rights of the plaintiff as the true owner. 'The very act,' said Lord Ellenborough, 'of taking goods from one who has no right to dispose of them is a conversion,'and held the action of trover maintainable.. 'And again,' said the same learned judge, 'the very assuming to oneself the property and right of disposing of another man's goods is a conversion; and certainly a man is guilty of a conversion who takes my property by assignment from another who has no authority to dis

pose of it; for what is that but assisting the the other in carrying his wrongful act into effect?'

The taking possession of personal property under a contract of purchase is an act based on the assumption of ownership, or a right of dominion over the thing converted, where the vendor is without title, and, although without evil intent, is a conversion for which trover lies without previous demand. The intent with which the wrongful act is done on the part of the defendant is not an essential element of the conversion. It is enough that the true owner has been deprived of his property by the unauthorized act of some person who assumes dominion or control over it. It is the effect of the act which constitutes the conversion. . . . Hence, the conversion may consist simply of a purchase, even by an innocent party, of goods or other personal chattels from one who has himself been guilty of a conversion in disposing of them, where the buyer takes the goods or chattels into his possession or custody."

The distinction between the mere purchase of property, and taking possession of property and exercising other acts of ownership over it, as, for example, the leasing of the property, is made in Gilmore v. Newton (1864) 9 Allen (Mass.) 171, 85 Am. Dec. 749. Upon this point the court refers to and quotes from 2 Greenl. Ev. § 642, to the effect: "A mere purchase of goods in good faith from one who had no right to sell them is not a conversion of them against the lawful owner until his title has been made known and resisted.' This position, though not supported by the cases referred to by Mr. Greenleaf, may be sustained by other cases. And not only are there decisions that 'a mere purchase' of property, without taking possession of it, is not a conversion of it, but also decisions that a purchase, receiving a pledge, or other bailment, etc., of property from one who had no right to dispose of it, and taking possession thereof, without any further act of dominion over it, do not always constitute a conversion of it.

But we need not discuss this class of cases, for no one of them sustains the defendant's objection; for his is a case not only of receiving an assignment and taking possession of the horse, but also of afterwards exercising dominion over him by bailing him to a third person."

So, in Crampton v. Valido Marble Co. (1888) 60 Vt. 291, 1 L.R.A. 120, 15 Atl. 153, the court stated that, according to the rule of that state, where one purchases personal property of a person in possession of it, but who is not the true owner and has no right to sell it, and the purchaser takes possession, claiming title to it as owner, and puts it to use, this is an actual conversion, and makes him liable in trover to the owner without any demand or notice, though he purchased in good faith of one whom he supposed to be the owner and entitled to sell it, and referred to this rule as a harsh rule.

In West Yellow Pine Co. v. Stephens (1920) 80 Fla. 298, 86 So. 241, where there had been an actual taking and use of the property, the rule was stated that the essential element of conversion is a wrongful deprivation of the property of the true owner; neither manucaption nor asportation is an essential element thereof. The court cites with approval the statement of the rule found in Quitman Naval Stores Co. v. Conway (1912) 63 Fla. 253, 58 So. 840, to the effect that, where there is a taking of chattels with the intent to exercise over them an ownership inconsistent with the real owner's right of possession, there is a conversion-citing 21 Enc. Pl. & Pr. 1012; 2 Words & Phrases, 1562.

In O'Brien v. McSherry (1915) 222 Mass. 147, 109 N. E. 904, a daughter was held liable to her mother for the conversion of the latter's piano, where, with knowledge of her mother's title thereto, she took from her father a bill of sale thereof, it, at the time, being in the father's house, where the daughter left it, but intending by the bill of sale to assert ownership and do whatever her father wished with the property conveyed. The court said these acts were without legal justifi

cation, and were in denial of the plaintiff's right to immediate possession, and a right of action then accrued to the plaintiff without demand and refusal. It will be noted that in this case the defendant knew of the plaintiff's claim of title.

In Geneva Wagon Co. v. Smith (1905) 188 Mass. 202, 74 N. E. 299, where the mortgagee of chattels which the mortgagor sold under a conditional sale contract was held liable to the true owner for the conversion of the chattels, the mortgagor, acting as his agent, having retained a key to the building in which the property was stored both before and after the sale of the property by foreclosure of the mortgage, the decision was based upon a finding of fact that possession of the property was retained under a claim of right inconsistent with the rights of the mortgagee.

In Dodge v. Meyer (1882) 61 Cal. 405, a person was held liable for the conversion of property where he accepted a bill of lading therefor from someone other than the true owner, and transferred the property to a third person. The rule is here stated that trover may be predicated upon any act which negatives or is inconsistent with the right of the true owner, and it is not necessary that there should be a manual taking of the property, or that it be applied to defendant's own use. It is sufficient if he exercises a dominion over it, whether for the use of himself or another.

So, in Omaha & G. Smelting & Ref. Co. v. Tabor (1889) 13 Colo. 41, 5 L.R.A. 236, 16 Am. St. Rep. 185, 21 Pac. 925, 16 Mor. Min. Rep. 184, in holding to be guilty of conversion the purchasers of ore from someone other than the true owner, where the purchasers mixed the ore with other ore and disposed of it, the rule is stated that the defendants, by purchasing the ore, acquired no title, and were consequently equally liable for its conversion with the party who sold it. And it was a matter of no importance, so far as the legal liability of defendants was concerned, whether they were ignorant or informed of the true

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