Gray v. Parker
38 Mo. 160
Mo.
1866
Check Treatment
Wagner, Judge,

delivered the opinion of the court.

The first point relied on for the appellants, in respect to the action of the court below in continuing the motion for a new trial to the next term, presents essentially the same question which was before us in the case of Riddlesbarger et al. v. McDaniel et al.,and for the reasons stated in that case the ruling of the court is approved.

The action here was a proceeding under the statute for the claim and delivery of personal property, and corresponds with the action of replevin at common law. We have dis*165covered no error in the court’s refusing appellants’ instructions, as those which had before been given at their request, in connection with those given for the respondent, sufficiently stated the law, and were all that were really applicable to the case. Appellants, in their answer, did not plead property either in themselves or in a stranger, but contented themselves with pleading non cepit, and traversing the respondent’s title to the property. Where non cepit is pleaded in an action of replevin, the plaintiff’s title is admitted, but it is incumbent on him to prove that the defendant had the goods; but where the issue raises the question of title, it devolves on the plaintiff to prove that, at the time of the caption, he had a general or special property in the goods taken, and the right of immediate and exclusive possession — 2 Greenl. Ev. § 561.

But this case must be reversed on account of the fourth instruction given for the respondent, which tells the jury, in substance, that if the defendant Jacob Parker wilfully took and carried away from the plaintiff any of the goods belonging to plaintiff and sued for in this action, and afterwards mixed the same with goods of his own, or goods which were in his possession as bailee, so that it was impossible to identify or distinguish the goods so taken away from the goods with which they were so mixed, then the plaintiff was entitled to recover his own goods so mixed, and to such other goods as it was impossible to distinguish from his own at the time of the seizure by the sheriff, provided the whole amount did not exceed the amount originally taken and carried away by the.defendant Parker.

This instruction is inconsistent with the second instruction given for the appellants, and moreover asserts an erroneous proposition of law. It is not true, that a bailee, by his tor-tious admixture of property in his possession, can deprive an innocent bailor of his right to his goods. It is an entire perversion of the law on the subject. Were the action brought by the bailor claiming the goods, there might be some *166grounds for applying this rule of law. If property is taken from the rightful owner by a wilful trespasser, and manufactured or converted by him into a different article, nevertheless the title to the property will not be changed, and it will still belong to the owner of the original material if he can identify it. But this is not the law when the chattel is converted by an innocent holder or purchaser into a different species of article.

The law makes a distinction in acquiring title to property by accession between a wilful and an involuntary wrongdoer. As the law will not permit any man to take advantage of his own wrong, so the former never can acquire any title, however great the change wrought in the original article may be, while the latter may—Silsbury v. McCoon, 3 Comst. 378; Hyde v. Cookson, 21 Barb. 92; Martin v. Potter, 5 Mees. & W. 352; Wild v. Holt, 9 Mees. & W. 672; Baker v. Wheeler, 8 Wend. 505 ; Brown v. Sax, 7 Cow. 95; Rightmyer v. Raymond, 12 Wend. 51. But the doctrine of confusion and accession of goods has really no application to the case. The action is in the nature of replevin for the recovery of specific chattels; their identity must be shown before they are liable to seizure. If they cannot be identified, or they have been concealed, destroyed, or made away with by the wrongdoer, an action must be prosecuted against him for their conversion. The evidence in the case was contradictory as to the identity of a part of the chattels ; the jury might well have returned a verdict for the respondent, without the above instruction, but, as we cannot tell what influence it may have had on their minds in determining their finding, the cause must be remanded for another trial.

Reversed and remanded.

Judge Holmes concurs; Judge Lovelace absent.