Butler v. Jones , 80 Ala. 436 ( 1886 )

SOMERVILLE, J.

— 1. The present appeal from the City Court of Selma presents for our review the conclusion and judgment of the court upon the evidence, as well as upon the law of the case, the trial in the lower court having been conducted without a jury. And in passing upon the evidence we are required to do so without any presumption in favor of the ruling of the City Court in behalf of the appellee, who was plaintiff in the court below, and obtained judgment against the appellant, as defendant. Acts 1875-6, p. 386, and p. 390, section 14.

2. The evidence fails, in our opinion, to show a conversion of the property sued for, such as will maintain an action in trover. It is not denied that the plaintiff was the owner of the property, or that the title and right of possession were vested in him. This is clearly shown. The only question is whether the defendant was guilty of exercising over the property any dominion in exclusion or defiance of the plaintiff’s right, by wrongfully detaining it from him after demand for its delivery. The chattels in controversy, consisting of office furniture and other articles, about eighteen in number, were loaned by the plaintiff to one Howard, in March, 1880, he being at that time a tenant of the defendant, and in the use of the chattels on the leafed premises up to the time of his decease, which occurred in January, 1884. The property was thus left on the premises in the constructive possession of the defendant. It is shown, that, when the agent of the plaintiff demanded the possession of the articles, the defendant asked him if he knew and could point out the things which belonged to the plaintiff, to which he replied/in the negative. The defendant then said, “ Let Mr. Jones (the plaintiff), or some one who lenows the things, come and get them, y that Mr. Howard owed him for rent of his office, and he would hold whatever belonged to Howard for this rent, under the lien which the law gave him.” This qualified refusal is the gist of the alleged conversion, upon which the action is founded.

While the law is, that a demand and refusal are generally prima faeie evidence of a conversion, a qualified, reasonable and justifiable refusal is no evidence of a conversion. It takes a wrongful refusal to constitute the defendant a tort feasor, and in the absence of such evidence there can be no conversion. It is well settled that the possessor of goods may refuse to deliver them up until the claimant makes some proper and reasonable show of ownership, which necessarily includes the fact of identification. — 2 Greenl. Ev. §§ 644-645; 1 Addison on Torts (Wood’s Ed.) §§ 472-473, 475.

The refusal of the defendant in this case was not absolute, but qualified and conditional. And this qualification was, in our judgment, reasonable and justifiable. It may have been necessary for the protection of the defendant against a double liability. This view is supported by all of the best law writers who generally follow the case of Green v. Dunn, 3 Campbell 216, which is closely analogous to the case in hand. The defendant, on taking possession of premises which had been' leased, found some timber which had been deposited there by permission of the previous occupant. Upon demand being made for it by the owner, the defendant replied: “ If you will bi’ing any one to prove it is your property I will give it you, and not else.” This was held to be a reasonable and qualified refusal, and not to constitute a conversion. The principle settled is conclusive of this case.

3. The objection was not well taken to the admission in evidence of the receipt of Howard to Jones, the plaintiff, showing a loan of the property in controversy by the latter to the former more than three years before the bringing of this suit.. The case is unaffected by section 2173 of the Code, of 1876, which provides that all loans in writing, under which possession is suffered to remain for three years with the party entitled to the use, shall vest an absolute estate in the loanee “ as to creditors and purchasers of such person,” unless such loan is recorded, within such time, in the county where the property is located. The purpose of this' statute, which is unlike any provision found in the English statute of frauds, was to prevent the creation of debts or procurement of credits, by false appearances, such as would naturally follow in bailments of this character, upon the faith of the possession of personal property by the borrower, who might be supposed to be the true and real owner; and also, to protect purchasers from the loanee against the defects of his title. It was never intended to interfere with, or create any new rights as between lender and borrower of the property. Its sole purpose is to protect the rights of third persons who may be creditors of the loanee, having extended such credit after the lapse of the three years designated, and to protect Iona fide purchasers of the property from him, who may acquire title after the expiration of such .period. — Durden v. McWilliams, 31 Ala. 206. The loans condemned by the statute are deemed fraudulent as to these two classes, being as to them transmitted into absolute sales.

The receipt in question was competent to show ownership of the property sued for in the plaintiff.

4. The estate of Howard was in no manner interested in the result of this suit, and the plaintiff was, therefore, a competent witness to testify, as against the defendant, Butler, to any relevant fact showing a bailment of the property to Howard during his lifetime. He would not be debarred from testifying to any transaction with, or statement by Howard, by reason of the provisions of section 3058 of the Code of 1876. This section has no application unless the transaction, or statement sought to be proved, occurred with a deceased person whosp estate is interested in the result of the suit in which the evidence is offered ; or unless the deceased was at the time acting in a representative or fiduciary relation to the party against whom such testimony is sought to be introduced. — Code, 1876, § 3058; Hendricks v. Kelly, 64 Ala. 388.

The court below erred in holding that there was any conversion proved, and in rendering judgment for the plaintiff.

Reversed and remanded.