9 Ind. App. 470 | Ind. Ct. App. | 1894
The appellee sued the appellant to recover the value of personal property alleged to have been converted by the appellant to his own use. There was a finding and judgment for the appellee, in the court below, in the sum of $60.
The first error assigned in this court is that the court erred in overruling appellant’s demurrer to the complaint.
A complaint, to state a cause of action for conversion, must contain such a statement of facts as will show the
"Conversion consists, as a tort, either in the appropriation of the personal property of another to the party’s own use and benefit, or in its destruction, or in exercising dominion over it, in exclusion and defiance of the rights of the owner or lawful possessor, or in withholding it from his possession, under a claim and title inconsistent with the owner’s.” 4 Am. and Eng. Encyc. of Law, 108.
To maintain an action for conversion, the plaintiff must be either the owner or entitled to the possession of the property alleged to have been converted. Day v. Watts, 92 Ind. 442.
In the complaint under consideration, it is not directly alleged that the appellee is the owner of the property alleged to have been converted, or entitled to its possession. TTis rights thereto are alleged to be under a chattel mortgage executed by the appellant, a copy of which mortgage is filed as an exhibit to the complaint. The chattel mortgage is not the basis of the action, hence it is not a proper exhibit, and can not be looked to for the purpose of supplying any fact omitted from the complaint, which is necessary to have been alleged. Ross v. Menefee, 125 Ind. 432.
Does the execution of a mortgage upon- personal property vest the title to such property in the mortgagee?
It has been held that a chattel mortgage is, at law, a conditional sale, which vests the legal title, and, prima facie, the right of possession to the things mortgaged in the mortgagee. Case v. Winship, 4 Blackf. 425; Roberts v. Norris, 67 Ind. 386; Johnson v. Simpson, 77 Ind. 412; Lee v. Fox, 113 Ind. 98; Walling v. Lewis, Admr., 119 Ind. 496; Ross v. Menefee, supra.
Under the statute, section 734, R. S. 1894, the mortgagor is recognized as having an interest in the mortgaged property, which is subject to levy and sale. The purchaser, however, buys the same subject to the lien of the mortgage, and can not take possession of the chattels, if the mortgage debt is due, until he complies with the mortgage and satisfies the debt. State, ex rel., v. Milligan, 106 Ind. 109.
This statute places chattel mortgages virtually upon the same footing as mortgages upon real estate, in this that it recognizes that the mortgagor retains the legal title or equity of redemption, and the mortgagee as having but a lien, which can ripen into a title only by a foreclosure of the mortgagor’s right or equity of redemption. Blakemore v. Taber’s Exr., 22 Ind. 466; Lee v. Fox, supra.
The common law right to possession of. the chattels mortgaged is in the mortgagee, not because' the title
Counsel for appellant insists that the mortgage filed with the complaint provides that the mortgagor should retain possession of the mortgaged property, hence the complaint is defective, in that it contains no allegation that made his continued possession thereof wrongful. As heretofore stated, the mortgage is not the basis of the action and is not a proper exhibit to the' complaint, and for that reason can not be looked to in determining the sufficiency of the complaint.
So far as any objection has been pointed out, we think the complaint sufficient.
It is next urged that the court erred in overruling the appellant’s motion for a new trial. We think this objection well taken. The evidence wholly fails to show that the appellee either owned or was entitled to the possession of the property alleged to have been converted. The chattel mortgage was not given in evidence, and there was no evidence of its contents or of a breach of its conditions. Without evidence showing a proprietary right in appellee to the property there could be no conversion by the appellant.
Judgment reversed, with instructions to sustain appellant’s motion for a new trial.