Lee v. Mathews , 10 Ala. 682 ( 1846 )

ORMOND, J.

The counsel for the defendant in error contends, that from the manner in which the question is presented, and from the necessary inferences arising from the record, we must presume that the law of North-Carolina was produced in evidence to the jury. To authorize the certified copy of the deed, by the public register of Halifax county, North-Carolina, to be read as evidence, it was necessary to prove by the law of that State, that such instruments were required to be recorded. It would seem probable therefore, from the manner in which the objection is taken, that the statute law of North-Carolina was in evidence, but we cannot indulge in inferences, against the positive statement of the bill of exceptions, that the deposition of Mr. Ponton, was introduced, to prove, that he was register of the court, and that the deed “ was registered according to the law of N. Carolina.” It may be as stated, that the purpose of introducing this testimony, was to prove, that the deed was registered within the time required by the law of that state ; the reasonable interpretation is, that he proved, that the law required the registration of such instruments.

The slaves being conveyed by the ante nuptial contract, to. the trustee, for the sole and separate use of the wife, no inference can arise from the fact, that they were in the joint possession of herself and her husband; such must of necessity be the case, when the husband resides under the same roof with his wife. It appears from the record, that two years after the marriage, Battle removed with his family to Alabama, bringing the slaves with him. We do not understand from the statement in the bill of exceptions, that the slaves remained in his possession from his removal to this state, until the time of the levy, that he held them adversely to the deed. If such had been the fact, it should have been stated. Assuming then, from the silence of the bill of exceptions, that he is living with his wife, his possession will be referred to the deed, and is in law the possession of the wife. The case of Swift v. Fitzhugh, 9 Porter, 71, is in point upon upon this part of the case.

From these considerations, it appears, that the slaves were not subject to sale, as the property of Battle, and it follows, that the purchaser is liable to the trustee, in an action of tro-ver for the value.

It is further argued, that this action cannot be maintained against the present defendant, because in the purchase of the slaves he acted as the agent of Mrs. Shamburgher, disclosed his agency at the time, and took the bill of sale in her name, and did not retain the possession but for a short period as such agent, the slaves having been delivered up to his principal, long before this suitwas brought. Our first impression was, that the defendant having acted merely as the agent of another person, and having parted with the possession before he received notice of the title of the plaintiff, was not responsible in this action, but that the suit must be brought against the principal. Subsequent reflection has satisfied us, that we were mistaken, and that the principle upon which we relied, does not govern* such cases as this.

The general rule of law, that agents properly authorized, i acting for a known principal, without any personal undertaking, are not individually responsible, does not apply to ;( torts, because no one can lawfutly command another to com-/ ] mit a wrong. It is also clear, that every unlawful intermed- 'I1' ling with the goods of another, is a conversion ; and it is no j answer to the true owner, that the person so receiving the { goods, was ignorant of his title, or that he received them for J the use or benefit of another. The taking, or receiving of them, being a .conversion, his subsequent disposition of them,. will not exonerate him from liability. It is equally certain, that the- title of the true owner cannot be divested, without, his consent — the only exception to this rule, being, that of a purchase in market overt, which has no application here. 'These principles, are fully asserted in the cases of Perkins v. Smith, 1 Wilson, 328, and Stephens v. Elwal, 4 Maule & S. 259.

'In both-these cases, the action was brought against a servant, who had received the goods of a bankrupt for,his employer, and had parted with them, before the action was. brought. In the last cited case, the act of bankruptcy Vfas. _ secret, and the defendant merely received the goods from another agent of the principal, who purchased them after a.secret »act of bankruptcy, and had transmitted them to his principal fin the United States, before any demand was made of him, or he was apprised of the facts of the case; yet he was held liable to the assignee of the bankrupt. Lord Ellenborough, in giving the opinion of the court, thus expounds the law :

“ The only question, is, whether this is a conversion of the cler k, which was undoubtedly 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 may amount to a, conversion, for a person is guilty of a- conversion, who intermeddles with my property, and disposes of it; and it is no answer, that he acted under authority from another; who had himself no authority to dispose of it. And the court is governed by the principle of «law, and not by the hardship of any particular case.’^-

f Allthough therefore this may appear to be a hard case, it ;is perfectly clear, the defendant in receiving the slaves, was guilty of a conversion, although he was ignorant of the title ■ of the plaintiff, and was acting merely as the agent of another, and consequently liable to be sued in this form of action.

^ The remaining question is, what is the measure of damar /ges. This question arises in this case, from the fact, that some, children were born after the female slaves were handed over to his principal by the defendant. The rule as to damages in trover, is, that the defendant is liable only for the damages actually sustained by the plaintiff from the conversion. [Strong v. Strong, 6 Ala. 345.] The value therefore of the property at the time of the conversion, with interest, thereon to the judgment, is the measure of the damages. This is the general rule, though there are certainly cases, where the jury would be justified in finding the value at a subsequent pe-, riod, instead of the value at the time of the conversion, with interest. [Greening v. Wilkerson, 1 C. & P. 625; Whitehouse v. Atkinson, 3 Id. 344.]

The increase of these slaves doubtless belongs to the plaintiffs, as an incident of their ownership of the females, but as the children have come into existence, since the delivery by the defendant of the slaves to his principal, we are unable to perceive, on what principle he can be held liable for them. Although the jury have a discretion to give the value of the property converted, at the time of the judgment, the subsequent birth of three children, cannot with any propriety be said to enhance the value of the slaves, actually converted, by the defendant. On the contrary their intrinsic value, was probably diminished by this circumstance. Although, therefore, these children are the property of the plaintiffs, their value cannot be recovered of the defendant, because he has not been guilty of their conversion, f

The case of Foster v. Gaston, 6 Pick. 185, relied on by the defendant, determines nothing adverse to the principle here laid down.' There, the widow of one deceased, had without authority, leased land, and certain animals, (swine,) belonging to the estate. The increase of these hogs, having been attached by a creditor of the lessee, the court held, the heirs could recover their value from him in trover, upon the ground, that as the lessee did not intend to commit a wrong in taking possession of the hogs, he might be considered as the agent of the heirs to take care of the estate; such being the fact, neither the hogs, or their increase, could be taken for the payment of his debts. It is obvious this case, has no relation to the one at bar. The only point of difficulty in this case, was the rule of law, which gives to one having the right to the possession of inferior animals, a title to the increase during such possession. That difficulty was surmounted, by considering him as the agent merely of the true owner to preserve them, and of course, the increase, as well as the animals originally taken possession of, belonged to the principal.

Let the judgment be reversed, and the cause remanded for' further proceedings.