13 N.C. 130 | N.C. | 1829
FROM MOORE. The cause was tried, on the plea of not guilty, before his Honor, Judge DANIEL, on the last circuit.
The plaintiff proved a gift of the horse to his ward, Daniel Blue, by his grandfather, John Wadsworth, the late husband of the (131) defendant, and that he had by his will bequeathed all his personal estate to the defendant during her life. The executor of John Wadsworth lived at a distance from the defendant, and in another county. All the property of the estate, together with the horse in dispute, was left by him on the plantation where the testator died, where also the defendant continued to reside — she contending that the horse had never been given to Blue by the testator, but that it continued to be part of his estate. It was in proof that after the death of her husband the defendant used the horse about the plantation; that she lent it to one of the witnesses to go to Fayetteville, and also to another person to go a short journey.
The plaintiff demanded the horse of the defendant for his ward; she answered that it was not in her possession, but in that of the agent of the executor, who lived some miles off; that she should do nothing until she saw the executor, and that she did not know that she would give it up at any rate. There was no proof of the plaintiff's appointment as guardian.
His Honor instructed the jury that if they were satisfied that the plaintiff had title to the property, their next inquiry should be the fact of a conversion by the defendant. That on this point it was not necessary for the plaintiff to prove a demand by him and a refusal by the defendant, when the horse was in her possession; that it was sufficient *83 if he proved to their satisfaction that the defendant had, since the death of her husband exercised acts of ownership over it inconsistent with his title.
Under this charge a verdict was returned for the plaintiff, and the defendant appealed. I am somewhat at a loss to say what this Court, as a reviewing court, should do as to the error in bringing (133) the suit. No doubt it was intended to be the infant's suit; it was so considered throughout. The trial was upon the infant's title, yet it is the suit of the guardian — it is brought by him in his own name; for although he describes himself as guardian of the infant, that is but matter of description, and does not make it the suit of the infant. The Court below, I think, should have rejected the whole of the evidence as irrelevant; for it did not tend to establish title in the plaintiff, but in his ward. I do not know what else we can do but to grant a new trial. The Superior Court may, under our act for the amendment of the law, and particularly under our construction of that act, permit an amendment upon terms, if it should be thought proper.
The counsel for the defendant made a very ingenious argument to show that there was no conversion; but he has not satisfied me that there was none. It is evident the defendant claimed a life estate in the horse, under the will of her husband, to which she was entitled, if there was no valid gift to the infant.
The executor left the horse with the other property on the plantation, where the widow continued to reside, and she no doubt exercised acts of control and ownership over it; for it appears that she lent him to one of the witnesses to go to Fayetteville, and once to another person to go a short journey. That when demanded she said the horse was not there; that he was in the possession of the agent of the executor, who lived three or four miles off. She said she would do nothing until she could see the executor, and that she did not know that she would give up the horse at any rate. This is very unlike the conduct of the possessor of a chattel, who, not knowing the owner, claims no property in it, but is willing to give it up, so that he is exonerated. On the contrary, it is very much like a claim, especially when coupled with her acts of ownership and her concluding remark that she did not (134) know that she should give him up at any rate, which seems like disclaiming the authority of the executor. All this looks much like a claim for herself, and when coupled with her interest under the will, shows that she held adversely. *84
The general rule is that any person who is in the possession of another's property is bound to surrender it upon demand. The exceptions are where a person really and bona fide does not know that the applicant is the owner. By which I do not mean that he can not judge whether his title is good or bad, as it were upon the law or intricate facts of the case — as if a man find property, before the finder can be put in the wrong there must be some grounds to believe that the applicant is the owner; not full proof, but something that would satisfy a reasonable man. Or, if one neighbor bails property to another, if it is demanded of the bailee, and he, thinking it is the bailor's, requests a delay until he can see the bailor and return it to him, this will not be evidence of a conversion. All these exceptions are founded in good sense, and it must appear on the transaction that the bailee neither claims possession for himself nor even for his bailor, but only that he wished a delay to enable him to return it to the bailor, that the latter might exercise his free will, and not condemn the bailee for not doing so, and that the bailee might thus avoid a law suit. If this defendant held for the executor, it appears that her motives were different from these. I rather suppose she considered that he held title for her, and that she held possession for herself — that she held possession for herself, that she was mistress, and could direct and act as she pleased; for it seems that when matters came to an extremity she would follow her own and not his will. When one is in possession under a bailment, by holding for the bailor and refusing to deliver the thing bailed upon demand, he identifies his possession with the title of the bailor; (135) and if that is bad the possession is a conversion, and he becomes personally chargeable. I think, therefore, the judge was right in the instruction given and in the manner in which he left the case to the jury.
As to the demand made by a person who does not show that he was guardian, or authorized to make it, I perfectly concur with the counsel that the defendant might well refuse to deliver up the horse on such a demand; but this should have been done on that ground, and not on the claim of right on her part; it is the claim of right which gives to her possession an adverse character.
I think the defendant has no pretence to shelter herself under the bailment from the executor; for she identifies herself with him, and if his title is bad her possession is wrongful. But the judgment must be reversed and a new trial granted, for the cause first mentioned.
PER CURIAM. New Trial.
Cited: Powell v. Powell,
(136)