16 Ala. 560 | Ala. | 1849
The first question we propose to examine is, whether the deed of assignment from Thomas to Bradford is fraudulent on its face, as against the existing creditors of Thomas. The deed conveys a stock of goods, debts, accounts, -&c., a considerable quantity of land, the house and lot on which the grantor and his family resided, also three slaves, together with a carriage and .horses, and household furniture. That portion of the deed relied on to show that it is fraudulent is in the following language: “ In order to carry out completely and fully the object and purpose of this conveyance, the said Joseph H. Bradford is hereby authorised and empowered to enter upon the premises and take possession of all and singular the lands and tenements, household furniture, negroes, goods, wares and merchandize, horses, carriage, notes, bills and accounts, without molestation, hindrance or let, and expose to sale, on the best terms practicable, either at private sale or public auction, for cash or on credit, as shall in the opinion of the trustee most comport with the interest of all parties concerned, all the above described lands, goods, negroes, horses, carriage and furniture, and disburse the proceeds as herein-before described; provided, that if the lands and other property herein mentioned are not sold within six months, then and in that event it shall be the duty of the trustee to expose all the personal property to sale to the highest bidder at public auction, in the town of Tuskegee, and the real estate to sell in like manner at the county seat in which it is situated,
It is contended by the plaintiff in error, that by the terms of the deed the plaintiff below had not such a right of possession. as would enable him to bring trover. The general rule is that the person who has the absolute title to the chattel may maintain this action, although he may not have had the actual possession ; for it is a rule of law that the general title to personal property creates a constructive possession. 1 Chitty’s Pl. 9th Am. edit. 152. The plaintiff must however show, that he is entitled to the right of immediate possession; for if the goods are leased for a term, whereby the lessee became entitled to the possession during the term as- against the owner, trover cannot be maintained by the general owner against a wrong doer who converts the goods in the possession of the lessee ' during the continuance of the lease. 1 Chitty’a Pl. 152; 2 Greenl. Ev. §§ 640. But trover may be maintained by the general owner who has delivered a chattel to a bailee or servant that has no right to the possession as against the owner, but who holds it for him. Thorp v. Burling, 11 Johns. 285; Wintringham v. Lafoy 7 Cow. 735. So a gratuitious bailor of cattle may maintain trover against a wrong doer who takes them from the possession of the bailee. 3 Harrison’s Digest, title Trover, 6387. These are the general principles by which ( we are to ascertain whether the plaintiff had such a right to / the possession of the property as enabled him to maintain the action of trover, and we think, under the facts of this case, the action can be maintained. The title vested in the plaintiff by the deed drew to it the right of possession, and the possession
We think the court correctly refused to give this charge for several reasons. The evidence shows that the possession was held in conform!'.y with me terms of the deed, and no benefit
It is unnecessary to examine the other assignments of error. The view of the law, as expressed in this opinion, is conclusive to show there is no error, and the judgment must be affirmed.