Holmes v. Bell

It appears to the court very clear, that this action, in its present form, cannot be maintained. To maintain trover, the plaintiff must have a legal title to the property alleged to have been converted. It is not sufficient to show an equitable title, or that the defendant had converted property which he was bound to convey to the plaintiff In *324the present .case, the carriages and harnesses sued for were the property of the defendants, having been conveyed to them by the plaintiff, to secure the payment of a note of hand from him to them. Now, admitting that the defendants have never been damnified, and that the mortgage has never been foreclosed as alleged by the defendants, still they had the legal title to the property, which is a decisive defence to the action in its present form. If those carriages and harnesses had been pledged, the action might have been maintained, if the defendants had never been damnified ; for in that case they would have nb right to sell the property, and such sale would have been wrongful, and would have been a conversion, for which trover would lie, the pledgees’ special property having been terminated by their wrongful act, and the general property always having remained in the plaintiff. But the law is otherwise in the case of a mortgage. By such a conveyance the whole legal title passes to the mortgagee conditionally; and in the present case the condition had not been performed at the time of the sale; and at that time the legal title to the property was in the defendants, and the plaintiff had no right to the possession. By. the sale the legal title was vested in the purchaser, and the subsequent demand on the defendants is of no avail.

The only remedy the plaintiff has for the loss of his property, if he has any, is probably by an action of assumpsit for the balance of the proceeds of the sale, after deducting the defendants’ expenses; as to this, however, we give no opinion.

But he may have liberty to amend his declaration, by changing the form of action, on payment of the defendants’ costs.

Exceptions overruled, and leave to amend gro nted