26 N.C. 102 | N.C. | 1843
Trover to recover the value of certain chattels, which the plaintiff claimed under a deed of trust executed by one John Beard to the *82 plaintiff as trustee for certain creditors. It was in proof that John Beard, the grantor, had continued in possession of the property conveyed after the execution of the deed, and while so in possession, in the prosecution of his trade as a hatter, with materials conveyed by the deed, to wit, fur and hats in an incomplete state, had finished a number of hats, and that these were spread about through several counties in this State and several in Virginia. The defendants introduced various judgments and executions against Beard for debts due prior to the date of the deed, amounting in all to about $500; but it did not appear that the articles which were seized and sold by the defendants had been sold by virtue of any execution on these judgments. The articles were all taken from the possession of Beard. There was no proof of any other debts of Beard at the time he executed the deed, except those referred to above and a judgment of a court and an execution thereon for $............, the lien of which was anterior to the date of the deed. It was insisted by the defendants that the deed to the plaintiff was fraudulent and void, and the court was requested to instruct the jury to that effect as a conclusion of law (1) because of the absence of any specification in the deed of (103) a debt or debts intended to be secured by it; (2) because of the manifest disparity between the amount of the property conveyed and the entire amount of the grantor's debts so far as they appeared; (3) because of the actual postponement of any action under the deed for six months. The court declined pronouncing, as a conclusion of law, that the deed was fraudulent for any or all the above reasons, but left them to the jury to be considered by them with all the other circumstances of the case, when they came to pass upon the validity of the instrument, as a question of fact. Upon the subject of damages, the jury were informed that they might not only assess the value of such of the articles converted as were in a state of completion at the time of the conveyance, but might add to this amount the value of such articles as were fabricated out of the materials conveyed.
The jury returned a verdict of guilty as to two of the defendants and not guilty as to the other. A new trial was moved for (1) because the court refused the instructions prayed for; (2) because the court erred in the instructions given on the point of damages. The new trial was refused, and judgment having been given according to the verdict the defendant found guilty appealed. On the question of fraud in the conveyance by Beard to the plaintiff, the court left it to the jury to say whether there was any *83 fraudulent intent on the part of Beard, and the jury found there was not such an intent. But suppose there had been such an intent, still the conveyance would have been good in law against the grantor and the defendants also, who were but tort feasors. The property (104) mentioned in the deed being dispersed made no difference, for the title being in Beard at the time, and there being no adverse possession, the said title in law drew to it the possession, and the plaintiff did not take an assignment of a chose in action, but acquired the title and also, in law, the possession of the property mentioned in the deed.
Secondly, Beard did not, after the date of the deed of trust, tortiously take the plaintiff's fur and change it into hats. He was the bailee of the plaintiff, and the alteration of the articles does not appear to have been done against the will and consent of the bailor. If I send my wheat to a mill to be ground into flour, and the miller, my bailee for that purpose, converts it into flour, the property in the flour is in me, and not in the miller; but if a miller or other person tortiously takes my wheat and afterwards turns it into flour or malt, the flour or malt is not my property. So if I gather my grapes and send them to my neighbor's wine press, and he by my consent turn them into wine, the wine belongs to me because the vintner was my bailee; but if my neighbor commit a trespass and tortiously take and carry away my grapes, and then turn them into wine, the wine is not my property. The wheat and the grapes thus tortiously taken having lost their identity by their transformation, the original owner cannot pursue and recover them from the tort feasor in their entirely new and changed nature and state. But even if things have been tortiously taken and have not lost their identity, the owner may recover them in their changed form unless they have been annexed to and made part of something which is the principal, or changes its form from personal to real estate (as if worked into a house), as cloths made into a garment, leather into shoes, trees squared into timber, and iron made into bars. All these, and such like, may be reclaimed by the original owner in their new and improved state, for the nature of the thing is not changed. Brown v. Sax, 7 Cowen, 59; Betts v. Love, 5 John., 384; Curtis v. Grant, 6 John., 169; Babcock v.Gill, 10 John., 287; Vin. ab. title Property, E. plea., 5.
PER CURIAM. No error.
(105)
