The facts in this case show title in the Plaintiff to the property in question, and a disposition thereof by the Defendant, avowedly and solely as agent for Eugenia Ashby, the owner and one of the mortgagors.
The Defendant’s answer avers that he acted as such agent without any interest or claim of interest in the same or its proceeds. The referee finds as a fact that he acted simply as the agent of Charles Ashby or of Charles Ashby and his said wife.
The title of the Plaintiff was valid both upon the facts found and upon the legal conclusions stated by the referee. It follows that the disposition of the property by Ashby and wife was a tortious conversion thereof, and so the referee finds.
E"o question of fraud in the mortgage to the Plaintiff or otherwise, nor any failure to place his mortgage on file pursuant to the statute, was decided by the referee or by the Supreme Court, nor *17 claimed by the counsel for the Appellant, to arise in the case, because as against the mortgagors and their mere agent the boná, lides of the mortgage and the filing thereof were regarded as wholly immaterial, and as against them, the mortgage was held valid, even though made to defraud creditors, and whether filed or not. It is, however, satisfactory to say, that both good faith and due filing and renewal of the mortgage are facts, in the case duly proved and found.
The case, therefore, raises the single question whether the possession of the mortgagors is such evidence of ownership or of authority to make sale of the property, that the Defendant, acting in good faith as their agent in the belief that they were owners, is protected thereby against the claim of the Plaintiff to recover for a sale and disposition thereof. Some stress was laid upon the fact that this transaction was more than a year after the mortgage debt became payable, and the continued possession of the mortgagors during that timéis claimed to be loches on the part of the Plaintiff, warranting the Defendant in trusting to their apparent ownership, and executing their direction to sell the property.
The reasoning sought to be applied to this, seems to me to overlook the fact found by the Beferee, that for more than a year of the period the Plaintiff had been in the actual prosecution of an action to enforce his rights against the mortgagors, and the further circumstance that the Defendant is in nowise shown to have been affected by or to have had any knowledge whether the mortgagors had been in the possession of the property one year or one day; he was not misled into any trusting to a long-continued possession, for it does not appear that he ever saw or heard of the property until the day on which it was brought to him for sale.
I do not, however, attach importance to this, for I am not aware of any principle or any authority which makes such mere possession, in the absence of fraud, amount to a justification of the agent in a fraudulent disposition of the property. It is placed by the Appellant upon some general idea that, because the mortgagors had possession and the Defendant honestly believed they were owners, and in that belief innocent of any wrongful intent, *18 Bold the property and-paid over the proceeds, it is not just that he should be held responsible. In other words, it is as to. the Defendant a hard case.
How all this would be very well, if it were true that mere possession of personal property was such evidence of ownership or of authority to dispose thereof, that all persons were at liberty to assume such ownership or authority, and act in reliance thereon. Unfortunately for the Appellant, this is not so. Indeed, the cases in which possession imports such authority are very few, and the mere fact of possession, unaccompanied by other circumstances giving it a specific character indicative of authority, never does.
Indeed, any consideration which is urged for the protection of the Defendant would have appealed as strongly in his behalf, if it had appeared that Ashby had stolen the property from the Plaintiff. Ashby’s possession would have borne the same aspect of apparent ownership, and the Defendant’s sincere good faith and innocence of wrong would have been equally of consideration. True, in such case the possession of Ashby would have been against the will of the Plaintiff; but even then, why should it not be said that the Plaintiff should have taken care that his property be not stolen, and not suffer the innocent Defendant to become a sufferer ? But take a stronger case: Suppose the property had been loaned by the Plaintiff to Ashby—it would not in that case be claimed, any more 'than if stolen by the latter, that Ashby’s possession would protect the Defendant, and yet the hardship of holding him responsible would be, in all respects, the same as in this case. I concede that it is hard, in one sense, that the Defendant should be compelled to indemnify the Plaintiff; it is so, because it is not easy always to be perfectly safe in one’s dealings.
But chattels are not negotiable; possession is not, as in the case of mercantile paper and money, assurance of title or of authority to dispose of. The servant entrusted with the possession of his master’s property does not thereby gain authority to sell it, or to authorize another to sell it: the borrower of a chattel or the ■ordinary bailor \d«aes not by his possession gain any such power;
*19
and, in short, the rule that no one can be deprived of his title without his own consent, has no such exception as is sought to be created in this case; and the converse rule, that he who assumes property which is not his own must see to it that he has a warrant therefor from some one who is authorized to give it, has no such qualification (Anderson
v.
Nicholas,
All there is, therefore, of hardship to the Defendant is, that he has undertaken to execute a commission for Ashby, or Ash-by and wife; and if, in consequence of acting upon fraud or misrepresentation, he is subject to liability to the Plaintiff, he will have to look to them for indemnity. Perhaps the finding of the Referee indicates that Ashby is insolvent—if so, that makes the hardship; but even that is not a peculiar case, it is most common in the affairs of business, and having, as the referee finds, heard that Ashby was insolvent when he undertook the commission, he might have known that his recourse to him for indemnity might fail.
The doctrine of the cases cited in the prevailing opinion in the Supreme Court does not appear to be contradicted by the counsel for the Appellant; and yet they seem to me decisive, in this case, of the principle that the agent, in a tortious conversion of another’s property, is liable where his principal is guilty of the tort, and even though the agent act innocently, in good faith, relying on the possession and apparent authority (if possession be deemed such) of his principal. Perkins v. Smith (1 Wils. 328), an innocent clerk sold goods for the.use of his master; Stephens v. Elwall (4 Maule & S. 259), an innocent clerk received goods from his master’s agent, and sent them to his master abroad. In this case the observation of Lord Ellenborough covers this whole case. The only question is, whether this is a conversion in the clerk which undoubtedly was so in the master. The clerk acted under an unavoidable ignorance, and for his master’s benefit, when he sent the goods to his master; but, nevertheless, his acts *20 may amount to a conversion, for a person is guilty of a conversion who intermeddles with any property and disposes of it, and it is no answer that he acted under the authority of another, who had himself no authority to dispose of it.
McCombie
v.
Davies (6 East, 537); Baldwin
v.
Cole (6 Mod, 212); Thorp
v.
Burling (
I am not aware of any warrant for such assumption, so long as it is true that a mortgage given in good faith, and for sufficient consideration, is valid, notwithstanding possession may be in the mortgagor, so long as such possession no more involves culpable negligence or loches in the mortgagee than possession of a servant, hiree, or other bailee, imports negligence in the owner. In truth, so long as mere possession does not import authority to sell, the negligence, if any, is on the part of him who relies upon it, and not on the owner who permits it; and the suggestion gains no strength from the observation, that if the Plaintiff had not suffered the mortgagors to be in possession, it would not have been in their power to deceive the Defendant; and where one of two innocent persons must suffer by the wrongs of another, the one who enables such other to commit the wrong must bear the consequences.
How did the mere possession of the mortgagors enable them to commit the wrong? Only by giving them physical power
*21
to deliver the property. The maxim is not true in the sense in which it is sought to be here applied. If it were, then, as in the other cases above referred to, whenever an owner suffers his property to go out of his manual keeping or presence, he is liable to lose it by the same means employed here, and is exposed to the maxim here invoked for the Defendant’s protection. It is only where the owner has parted with the legal title upon some secret trust or condition, or has done something calculated to mislead, upon which a third person has a right to rely, and on which he does rely, as evidence of authority, that such maxim could have any application, and the attempt to apply it here begs the whole question (see Cowen, J., in Ash
v.
Putnam,
The order of the General Term of the Supreme Court granting anew trial should be affirmed, and in pursuance of the Defendant’s stipulation, judgment absolute for the Plaintiff must be rendered.
All concur.
Order of General Term affirmed, and judgment absolute for the Plaintiff, with costs.
JOEL TIFFANY, State Reporter