44 So. 655 | Ala. | 1907
The appellee instituted this action against the appellant., and his complaint contains three counts — the first in trover, and the second and third in trespass, for a wrongful levy of a writ of attachment by the appellant, who Avas sheriff of Madison county, on property of the appellee, a stranger to the Avrit, The trial was had on issue joined on a general traverse and
There was a special finding of facts by the judge.— Chandler v. Crossland, 126 Ala. 176, 28 South. 420. Whether the findings made are sufficient to sustain the judgment as upon the second and third counts of the complaint, viz., for a trespass, it is unnecessary to decide, since in the view taken of the case the judgment is, in our opinion, supported by the findings resposive to the first count, viz., for the conversion, and to this count the judgment will be referred for its propriety.
After that determining the fact of purchase, prior to the issuance of the writ, of the property involved by appellee from Steger, the court’s findings, pertinent to the question of conversion Ami non, may be summarized as folloAYS: That before the departure of the deputy from Huntsville to the place Avhere the corn was, 14 miles aAvay, appellee notified the deputy and appellant that the corn in issue Avas his; that, notwithstanding this, the deputy Avent to the cribs where the corn was stored, took a view of it, placed his hand on the cribs, but not on the corn, did not go in the buildings or put up any notice of levy, nor place any one in charge or custody of it, nor measure the coni, but guessed at the quantity, nor demanded the key to one crib, which Avas locked; that he Avent to Stegar, and told him he had levied on the corn; that he returned to Huntsville, and Avithin a day or tAvo indorsed his return on the Avrit that levy had been made on the corn; that on the day or night of the alleged levy appellant told appellee that he had possession of the corn under the Avrit, and would hold it if plaintiffs in the writ gave him a promised indemnity bond, Avhich bond was given him; that on demand appellant several
Conversion is the gist of the action of trover, and to sustain a recovery therein it is incumbent upon the aggrieved party to show a destruction of his property, or some unlawful interference or intermeddling with his use, enjoyment, or dominion over it, for the benefit or use of the offender or of another, in disregard or defiance of the owner’s right. This conversion need not extend to a physical taking of the property; but it must be a positive, tortious act, as distinguished from a mere nonfeasance or neglect of legal duty. — Bolling v. Kirby, 90 Ala. 215, 7 South. 914, 24 Am. St. Rep. 789, and notes; Davis v. Hurt, 114 Ala. 146, 21 South. 468. It is unquestionably true that mere words — declarations— will not, in and of themselves alone, amount to a conversion. Something more must attend. And it may be obesrved that there is, of course, a well-defined distinction between a conversion and evidence tending to show such has been accomplished. But declarations, admissions, or statements, in connection with the circumstances surrounding their delivery or making, will in some cases give color and effect to the act which, without them, would fall short of conduct, anent the property, warranting a recovery in trover. — Gillet v. Roberts, 57 N. Y. 32, 33; Connah v. Hale, 23 Wend. (N. Y.) 466; Bristol v. Burt, 7 Johns. (N. Y.) 254, 5 Am. Dec. 264; McCombie v. Davies, 6 East. 537-539; Gibbs v.
The ignoring of the notice of the sheriff and his deputy that the corn was appellee’s, the visit of the deputy to the place of its location, his acts there, the declaration to the defendant in attachment that he had levied on the corn, the indorsement of the return on the writ, tlxe assertion by the appellant that he had the possession, the reception of an indemnity bond in the premises, the refusal on demand to surrender the property to appellee, the statement by the appellant to appellee that he did not turn over the corn to the trustee in bankruptcy, and, finally, the important fact that the acts and declarations were those,of a sheriff and his deputy armed with an attachment writ, and the certain acquiescence by the appellee in the assumption by these officers of dominion and authority over the corn in question in palpable definance of the appellee’s rights in the premises, and the subsequent sale thereof by the trustee, all lead unerringly, we think, to the conclusion that a conversion was accomplished. It would be a remarkable proposition to say that such acts, condxxct, declarations, and results were unremediable in this character of action; manucaption not being essential to the accomplishment of a conversion.
Many of the assignments of error rest on the rulings of the court on the admission of testimony, viz., declarations of the appellant to appelle.and to the trustee upon his demand for the property, levied on under the writ, the admissibility of the writ of attachment, the papers, ■etc., in the bankruptcy proceedings, and the indemnity
The action of the court in admitting the testimony showing the rule of estimate used by appellee and Steger in their agreement for purchase and sale of the coin, if erroneous at all, wrought no prejudicial injury to appellant, because the judgment rendered appears to have been fixed in amount by the multiple of the actual corn, as measured out, and the. price per bushel ascertained by the court.
In our opinion the judgment should be affirmed.
Reversed and rendered.