Parker v. Middlebrook

The court do**not feel called upon to determine the interesting questions, relating to the powers of a wife, as the agent of her husband, where she has, without cause, abandoned him, in another state, and, unknown to him, has been transacting business • here, as a feme sole, which have been argued before us, in this case ; because, if we admit,—which we do not, except for the purposes of this case,—that a sale of property, acquired by her while thus transacting business, for the purpose of paying a debt contracted in that business, is void, on the ground that the property belongs to the husband, we still think this action must fail; and the city court was correct in ordering the nonsuit.

The action was trover; the gravamen of which is the conversion of the property, for which it is brought. But a *210conversion is a wrongful, or tortious act; andá. mere purchasefrom a party in possession, who is th^ apparent, owner, made in good faith, and in the regular course of business, is not a conversion against the lawful owner. Such a purchaser can not be in a wofse condition than the finder of' a chatterwhich has béen casually lost; and it ought, at least, toJüTshown that he has assumed dominion over the property, after the title of the lawful owner has been made known to him; which is usually evidenced by showing a demand of iijpy the owner, and a refusal to deliver itup.J No such demand was made, in this case, before'tfie siiiFwas instituted. We think, therefore, that upon the facts proved, a nonsuit was properly ordered, and that, as yet, the ¡plaintiff has no right of recovery. He never resided in Connecticut, and is ignorant that his wife is héie^pr that any suit has been commenced in his name. Indeed he has no knowledge of the property, which his wife now claims in his name. But during his temporary absence from his place of residence at Etica, N. Y., his wife, for the purpose of avoiding him, secretly left his home, came to Bridgeport, where she has continued to reside since 1852, transacting business as a v feme sole, and a portion of the time engaged in keeping a boarding-house; and for the purpose of preventing her husband from finding her, assuming the name of her former husband. To supply her boarding-house, she purchased provisions of the defendant, and, in payment of his bill, executed a conveyance of the property, which, she now claims, belongs to her husband, and which had been purchased, by her, since her residence in Bridgeport, from the avails of her earnings there. It was said that the defendant might have known her true name and history, because it was not kept secret, in the neighborhood in Bridgeport, where she resided. This may be so, undoubtedly, but it does not, under the circumstances, amount to evidence that he did know it; and there is nothing to indicate that the defendant was not a bona fide purchaser from one having every appearance of being the *211true owner, trusting to those appearances. Under these circumstances, we think there is no error in the judgment of the superior court, sustaining the nonsuit.

In this opinion, the other judges, Waite and Storks, concurred.

Judgment affirmed.