Carraway v. Burbank, 12 N.C. 306, 1 Dev. 306 (1827)

Dec. 1827 · Supreme Court of North Carolina

12 N.C. 306, 1 Dev. 306

Snode B. Carraway v. From Abner Burbank,

From Washington.

An act of ownership over personal property, inconsistent with the rights of others, is a conversion. Therefore, where an administrator exposes property of his intestate, at public sale, and buys it in himself, this is a conversion as to persons having a title to the property.

Trover for a horse, and on the trial, before Martin Judge, the facts were, that the horse had belonged to the Plaintiff, who sold him to one Coakley, upon condition, that if the money was not paid by a specified time, that the title should return to the Plaintiff. Before the day of payment, Coakley died, and administration upon' his estate was committed to the Defendant, who set up the horse at public vendue and bought it himself. There was some contradiction .in the testimony as to the character of the sale to Coakley, upon which it is not material to remark. His Honor instructed the Jury, that if they believed the evidence of the sale by the Defendant, and the purchase by himself, it did not, in iaw, amount to a conversion. That the Plaintiff should have proved a demand of Hie horse and a refusal to deliver on the part of the Defendant, which would have been evidence of a conversion. The Jury returned a verdict for the Defendant, and the Plaintiff appealed.

The case was submitted without argument, by Gaston and Deveretux, for the. Defendant. No Counsel appeared for the Plaintiff.

Hekuerson, Judge..

Conversion is an act of ownership, exercised over the personal chattel of another, inconsistent with the owner’s right.- it must be an act, bare words will not do. Words however may qualify an act, and shew its character. A refusal to deiiv*"- upon demand, is' not the conversion ; but it is the possession afterwards, which is qualified by the refusal, and shewn to he adverse, after the right to possess is put at an end, by the demand of the owner. Putting up this horse for sale, as the property of his intestate, by the Defendant, although he bid him in himself, is an unequivocal act shewing the nature of his possession, and declaring it to be adverse to the right of the owner. A demand is not required, to give the Defendant an opportunity of avoiding a suit, by delivering up the property in dispute; hut to put an end to the Defendant’s right to possess, which before might be lawful, as in the case of the finder, or of the owner’s bailee. The detention afieiwards is the conversion. And if before the demand, possession is wrongfully parted with, this is itself a conversion. Or the Defendant may be concluded, by his own wrongful act, from setting up as a defence, his want of possession at the time of the demand. — There must be a new trial.

Haex, Judge.

Whether the sale by the Plaintiff to the Defendant’s intestate was conditional, or whether it was absolute, and time given to pay the purchase-money, was properly left to the Jury. As to the second question relating to the sale of the horse, which is relied on as a conversion — if the horse had been purchased by a third person and the money paid to the Defendant; or if the money had not been paid, it would have amounted to a conversion, as it would have been an exercise ofownership over him. As to this question, the fact that, the Defendant became the purchaser, can make no. difference, he thereby evinced bis intention to become the owner.

It is said, in Bacon’s Abridg. (Trover B.) that every disposition of property as a man’s own, is a conversion. If one-dispose of another’s property, for the benefit of a third person, this is a conversion. If a,person intrusted with another’s goods, places them in the hands of a third person, contrary to orders, it is a conversion. (Syds. v. Hay, 4 Term. Rep. 260.) Every unlawful intermeddling with the goods of another, ami exercising acts of ownership over them, is a conversion. 1 therefore think, the rule for a new trial should be made absolute.

Tayuok, Chief-Justice.

It is not necessary to prove a demand and refusal, where the Plaintiff can show an actual conversion. If a person purchase another’s goods, ■from one having no right to sell them, and takes them into possession, it is assuming upon himself the property and right of disposing of another’s goods, and amounts to a conversion. The Defendant’s possession and claim were adverse to the Plaintiff’s right $ and the possessing himself of the horse under such circumstauces, constitutes the cause of action. — There should be a new trial.

Per Curiam. — Judgment reversed, and a new trial granted.