13 Ala. 776 | Ala. | 1848
In an action of trover, it is necessary for the plaintiff to show title to the property, an immediate right of possession, and a conversion by the defendant. The plaintiff’s title to the property in this case, was not denied by the charge of the judge, but the charge was calculated to induce the belief, either that there was no conversion shown, or that the plaintiff did not have an immediate right to the possession; hence arises the necessity of examining this question. If one deliver stock, or cattle, to another, to be kept or fed, with the power to sell them to pay for their keep, will trover lie against the party to whom they are so delivered, if he convert the cattle to his own use, without tendering pay for keeping them ?
It is very clear, that if a factor, or other bailee, having a lien on goods, sell them, or convert them to, his own use, or destroy the goods, as by drawing out a quantity of wine from a cask, and filling it up with water, that the owner may bring trover immediately, without regard to the lien. See 19 Wend. 431, and the cases there cited. And I think that any act by a lien holder, inconsistent with the character of his possession, and denying the title of the owner, will justify the owner in bringing trover, and that such conduct on the part of the lien holder, destroys his lien. See Samuel v. Morris, 6 Car. & Payne, 620.
This view is corroborated by Mr. Chitty, in his work on Pleading, p. 152. It is there said, that if a person have
The charge of the court as asked, admits the right of the defendant to sell enough to pay his debt, but sought to charge him for the conversion of that portion of the stock, sold after he had raised money enough to extinguish it. The court did not give this charge, because the defendant himself was the purchaser. The sale was at public auction, and the defendant the highest bidder. Such a sale is not absolutely void, but is voidable at the election of the party whose title is sought to be divested by such sale. The court should have given the charge as requested, and for the refusal so to charge, the cause is reversed and remanded.