55 Cal. 555 | Cal. | 1880
Lead Opinion
By the findings of fact, which are conceded to be correct, it appears that on the 5th day of April, 1873, the plaintiff deposited with one Baux of San Francisco, certain jewelry. In about one month thereafter, the plaintiff, being about to leave San Francisco and to go to St. Louis, demanded her jewelry of said Baux, and he pretending that his father had the key to the safe induced her to leave without her jewelry, promising to forward it by express to her at St. Louis, so that it would reach there nearly as soon as she would. In fact, however, he had then pawned and delivered a part of said jewelry to the defendants, who were pawnbrokers, and on the 17th day of M:ty, 1873, he pawned and delivered a part of the residue of said jewelry to them, and on the following 9th day of July he pawned and delivered the entire residue thereof to them. Baux did not redeem the pledge, and on the 6th day of June, 1874, defendants sold it in the manner provided by law. On the 24th of July, 1876, plaintiff demanded said jewelry of the defendants, or its value, and said demand not being complied with she commenced this action. She alleges, among other things, that the defendants on the 6th day of June, 1874, unlawfully converted and disposed of said jewelry, and then alleges that on the 24th day of July, 1876, she demanded it as above stated. The judgment demanded is for the possession of the property, or if that cannot be had, for the value of it. v
■ One of the allegations of the answer is, that the cause of action did not arise or accrue within three years before the commencement of the action, and that it is barred by subdivision 3 of § 338 of the Code of Civil Procedure. The Court rendered judgment in favor of the defendant, and from that judgment the ' plaintiff appeals to this Court.
The reason of the New York rule, as stated by Mr. Justice Bronson in Barrett v. Warren, 3 Hill, 348, is that “ a man who innocently purchases property, supposing he should acquire a good title, ought not to be subjected to an action until he has an opportunity to restore the goods to the true owner.” In this case the reason of the rule ceases, because if the defendants had not supposed that Baux had a good title to the property, a cause of action would have accrued in favor of the plaintiff at the moment of their obtaining possession of it, and consequently would have been barred by the Statute of Limitations when this action was commenced. "It clearly was not the intention of the courts which laid down or adopted that rule, to place an innocent bona fide purchaser in a worse position than an original wrong-doer would occupy, as it obviously would when applied to a case like that now before us.
Of the New York doctrine Mr. Justice Cowen, in Barrett v. Warren, supra, says: “ I will not, however, deny that an exception in favor of the taker, where he .is a bonajide purchaser from the wrong-doer, has found its way into the books; nor that however discordant it be with established principles, it may, at least in this State, have become too inveterate to be displaced.’’ Again in the same opinion, he says: “ The result is that no English adjudication creates an exception in favor of one who. purchases from the tortious taker of another’s property.” He further expresses the opionion that the New York rule origina-.
Stanley v. Gaylord, supra, Avas a case Avhere the bailee had mortgaged as security for his OAvn debt the property of his bailor, and the mortgagee took possession of it under his mortgage; and the bailor sued the mortgagee in trespass.
In Galvin v. Bacon, supra, the plaintiff being the owner of a horse, bailed him to A. for use for a limited period, under the expectation of a purchase by the latter. During the time, A., for a valuable consideration and Avithout notice, sold the horse to B.,
In Wells v. Ragland, 1 Swan, (Tenn.) 501, it is distinctly held that where the possession of property is obtained from one who had no right to transfer it, a right of action by the owner against the transferee accrues as soon as the latter acquires possession of it; that the bare taking of possession under such circumstances constitutes a new conversion on the part of the person taking it, and that from the time of the commission of that act, the statute will commence running.
It has been held in this State that the exemption from being sued without previous demand does not apply to sheriffs who seize upon execution property in the possession of but not belonging to the execution debtor (Ledley v. Hays, 1 Cal. 160; Boulware v. Craddock, 30 id. 190; Wellman v. English, 38 id. 583); nor to an execution creditor who purchases at sheriff’s sale property so seized (Sargent v. Sturm, 23 id. 359); nor to a purchaser for value who had notice, before he removed the property, sufficient to put him upon inquiry as to the true ownership, even though such notice was not received until payment of the purchase price (Scriber v. Masten, 11 id. 303). None of these cases conflict with any decision made elsewhere upon the points involved in them, so far as we are advised, and they are not cited because of any bearing that they are supposed to have upon the point now under consideration, but merely for the purpose of showing that the question under consideration is an open one in this State.
It will be observed that wherever the doctrine of exemption prevails, it is strictly limited-to what are termed bona fide purchasers for value and without notice.
We are unable to perceive, however, that a person can ever be considered a bona fide purchaser of goods from one who has no right to sell, in a case where the rule ca.veat emptor applies. The law imputes notice to him. Under that rule he is not only put upon inquiry, but he is conclusively presumed to have ascertained the true ownership of the property before purchasing it. If he has notice in fact, no demand upon him for the property is necessary before commencing the action to recover it. If he is
Judgment affirmed.
Morrison, C. J., McKinstry, J., Boss, J., and Thornton, J., concurred.
Dissenting Opinion
I am of the opinion that the plaintiff’s cause of action is not barred by the Statute of Limitations.
It is admitted that the property in controversy was delivered to the defendants by the voluntary trustee of the plaintiff in the month of May, 1873; that the defendants sold it on the 6th of June, 1874; and that the plaintiff did not discover the sale, or the fact that the defendants had got possession from her trustee, until July, 1876.
When the defendants got possession in 1873, by the transaction between them and Baux, they became, under §§ 2233, 2224, and 2243 of the Civil Code, the involuntary trustees of the property for the benefit of the owners, and subject to all the duties, rights, and obligations of that relation. In taking possession of the property, they did not take it by force or fraud from the actual or virtual possession of the plaintiff; it was delivered to them by the voluntary trustee: the taking was, therefore, not tortious.
The possession thus assumed by the defendants continued until they wrongfully deprived the plaintiff of the property by a sale, or wrongfully refused, on demand, to deliver it to him.
At the time that the plaintiff discovered the transaction whereby the defendants had got the possession, the property was not then in their possession. If it had been, it would have been the duty of the defendants, as involuntary trustees of the property, to have delivered it to the plaintiff on demand. Kefusal to do so would have been a breach of duty. Non-delivery to the owner after notice and demand is a conversion. But the defendants had sold the property, and the sale was also a conversion, the plaintiff, however, was ignorant of the sale, and did not discover it until July, 1876. When she did discover it,
is, that the owner consents to the custody and use of her property, until she discovers that it had been wrongfully dealt with; and that a conversion took place when, upon that discovery, the trustee refused to deliver or account for it on demand.
In Alvord v. Davenport, 43 Vt. 30, a person to whom had been let a horse and buggy, left them with a hotel-keeper and •disappeared. The hotel-keeper suspected something wrong, but did not know who or where the owner was, and the owner did not know where his property was. ■ lie advertised for it, but did not discover anything concerning it, until more than five years had elapsed, when he heard that the property was in the possession of the defendant, the hotel-keepor. He went and found it there, and, identifying it as his property, he demanded it. The defendant refused to deliver it, and the owner sued him in trover ; and the Supreme Court of Vermont held that up) to the time of the demand and refusal there was no conversion.
In Wilkinson et al. v. Verity, 6 Law R. C. P. C. 206—“ where goods having been bailed by the plaintiffs to the defendant for safe custody, the defendant rvrongfully sold them, and the pdaintiffs, more than six years after the date of the sale, being ignorant of the fact of its having taken pdacc, demanded the return of the goods, which the defendant refused—it was held, in an action of detinue for the goods, that the Statute of Limitations ran from the date of the demand and refusal, and not from that of the sale, inasmuch as the pdaintiffs, in such a case, though entitled, if they had discovered the sale, to sue immediately for a conversion of the goods, were also entitled to elect to sue upon the breach of the bailee’s duty in the ordinary course, by the refusal to deliver on request.”
I think that the plaintiff in the case in hand was entitled to judgment, and that the judgment of the Court below should be reversed.
Dissenting Opinion
I dissent. I think that the rule known as the New York rule would be the most proper rule to adopt in this State, and that the Statute of Limitations should be held to have commenced to run from the time of the sale of the property by the pledgee.
