1 Ga. 381 | Ga. | 1846
By the Court
This was an action of trover, brought by the plaintiff in error, to recover the possession of fourteen slaves. It appeared in evidence at the trial, the negroes in controversy were the property of the plaintiff’s intestate, before her intermarriage with Henry Taitón. That, prior to the marriage with him, she entered into a marriage contract, by which the aforesaid property was secured to her sole and separate use. It also appears, from the record, Henry Taitón survived his wife Camilla, the plaintiff’s intestate, married again, and then died. The plaintiff’s intestate left two children, one by her former husband and one by Henry Taitón. The plaintiff then proved the conversion of the negroes by the defendant, their value, &c.; then read his letters of administration to the jury, the marriage contract, proved the marriage of the parties thereto, and closed his case. The defendant then moved the court for a nonsuit, op the ground the plaintiff’s evidence showed the legal title to the property was in John IAptrot, as trustee, under the marriage contract, and not in said John Liptrot as the administrator of Camilla Taitón. Which motion the court sustained, on the ground that the plaintiff’s intestate, at the time of her death, bad only an equitable interest in the property, and that such interests are cognizable alone in a court of equity. To this decision of the court below, the plaintiff excepted, and now assigns the same for error in this court. The plaintiff has made general specifications in his assignments of error, but they all amount to the same thing in substance, and will be all considered together. To enable the plaintiff to maintain trover for the property in dispute, he must have had either a general or special property therein, the actual possession, or the right of possession. — Holcombe vs. Townsend, 1 Hill's So. Ca. Rep. 399.
The whole interest of the intestate’s personal estate vested in the plaintiff as her administrator, on the grant of letters of administration; and such grant has relation to the time of the intestate's decease.— Toller's Executors, 133. Was there such an interest then vested in the plaintiff, as the administrator of Camilla Taitón, as would entitle him to maintain an action of trover against the defendant, who is a mere stranger, so far as the evidence shows ? It is true, the defendant’s plea exhibits him in a different capacity, but that is no part of the testimony. It is conceded that the plaintiff’s intestate held this propertyin her own right. Anterior to her marriage with Henry Taitón, the title to it was
At the time of the death of Camilla Taitón, she was the owner of the property, and could have alienated the same without any authority
Although the slaves were expressly conveyed to the trustee by deed., by the then owner, Anna Jones, in trust for the use of the plaintiffs, after her death, yet, the court held, the trustee had only a special property in the slaves, which terminated at the death of the donor, the object of the trust having been executed. So here, the object of the donor, or creator of the trust estate, in John Liptrot, (if yon please to call it such,) was fully answered, by haying the property protected against the marital rights of Henry Taitón, during the coverture, according to the true intent and meaning of the parties to the instrmment; and when the coverture was determined, by the death of the donor, the right of possession, as well as the right of property, vested ire her legal representative. The trustee had no longer any interest ire the property, after the dissolution of the coverture ; his interest, and Ms only interest, in the property was, to- protect it for the- sole and sop>
The action of trover being founded on a conjunct right of property and possession, any act of the defendant, which negatives, or is inconsistent with such right, amounts in law to a conversion. It is not necessary to a conversion, that there should be a manual taking of the thing in question by tbe defendant: it is not necessary that it should be shown, that he has applied it to his own use. Does ho exercise a dominion ova it, in exclusion, or in defiance of the plaintiff’s right ? If he does, that is in law a, conversion, he it for his own or another person’s use. — 6 Bacon’s Abr. 677; Bristol vs. Burt, 7 Johns, Rep. 258; Reid vs. Colcock, 1 Nott and McCord’s Rep. 600; Reynolds vs. Shaler, 5 Cowen’s Rep. 323. But it is said, where a party comes lawfully into the possession of property, there must be a demand and refusal proved. This is undoubtedly trpe whore the defendant finds the property, or where he gets possession of it, by the consent of the plaintiff; the possession must be lawful as against the plaintiff. — 2 Phillips’ Ev. 225. Demand and refusal is only evidence of a conversion. — ib. 226. But where the defendant gets possession of property, as administrator, in right of Ms intestate, or where he gets possession of it as a purchaser, at sheriff’s sale, under an execution against some third person, and uses and exorcises dominion over the property as his own, it is a conversion, as against the rights of the plaintiff, who is a stranger to the title, under which the defendant claims. Although the defendant may obtain the possession of property under legal process, yet, if he assert a title or claim hostile to the plaintiff’s right or title, under such legal process, it is a conversion as against the plaintiff. — Hulchins vs. Bobo, 1 Bailey’s Rep. 546; Tompkins vs. Haile, 3 Wend. Rep. 406; Bates vs. Conkling, 10 Wend. 389; Summerset vs. Jarvis, 7 Eng. Com. Law Rep. 322. What is meant by defendant coming lawfully into possession of the property is, where ho finds it, and retains it for the true owner : or whore he