Henderson v. Pilley , 131 Ala. 548 ( 1901 )

DOWDELL/ J.

The appellant brought his action in trover against appellee to recover damages for the conversion of four mules and two wagons. Upon the trial of the cause,1 upon the undisputed evidence in the case-the court- gave the general affirmative charge at the request of the defendant in writing and refused it to the plaintiff. Upon this action of the court is based 'appellant’s - assignments! of error.

To support the 'action of trover, the plaintiff must have, at the time of suit brought, either a general or special property right in the -chattel -alleged to have been converted; and if a special -or qualified light of property, then coupled with a right of immediate possession. Elmore v. Simon, 67 Ala. 320; Kemp v. Thompson, 17 Ala. 9; Bolling v. Kirby, 90 Ala. 215. It must be a right to the property itself as -distinguished from a mere lien upon it. — Street v. Nelson, 80 Ala. 230. Applying these principles to the undisputed evidence in the case, the defendant was entitled to the affirmative charge as requested, and the court-’-committed no error in giving the same.

It is a conceded 'fact that the properly in question originally belonged to one Monjeau, who owned a'plantation in the county of Pike and upon which the wagons and mules were used in farming operations, and it is also a conceded fact that the defendant purchased said property -from the said Monjeau. It is shown by the evidence on the part of the plaintiff that prior to' such purchase by defendant, proceedings were; had in the chancery court of said county wherein the said Monjeau was a party, and that in said proceedings the appellant, Charles Henderson, was appointed receiver, and as s-uch receiver wais by an order of the chancei^ court directed to take possession of the property in question, together with other property of the said Monjeau, pending said litigation in said chancery-court; that said Henderson, as such receiver, did not take the actual possession of the wagons and mules in question, but by agreement with the appellee, S. A. Pilley, who was then the agent of said Monjeau, left the same in bis possession. ■ It is further shown by plaintiff’s testimony that in the course of said chancery proceedings there was a decree obtained against said Monjeau in favor of one Polmar, and an order of said chancery court directing the receiver to make sale of the property of said Monjeau in his hands as such receiver, and report his actions to said court. It is further shown that said receiver, as such, reported to said court a sale of the property in question, together with other property in his hands as such receiver, but as a matter of fact it is shown by the plaintiff himself that there was no sale of the wagons and mules, the foundation of this suit. The receiver accounted, under the orders of the court, to the register for the proceeds of the pretended sale, and paid the same over to the register, which said fund was after-wards, under a consent order, applied to the costs of the suit on the decree which had been rendered in favor of said Folmar. After this, no further orders were taken in the chancery 'cause, and -said cause was thereafter left off the docket. There was no formal order of the court discharging the receiver, nor was this essential. The fund which came into his hands as such receiver having been paid into court and there distributed under a final decree, the duties of hisi office a® such receiver terminated. The property in question was at that time in the hands of the defendant, claiming it under a purchase from the said Monjeau. It, is quite clear from this statement that Henderson had, at the time of suit brought in this case, no such qualified right in the property as would support an action of trover foir the conversion of the same, for a® such receiver his duties terminated, and whatever of property remained unsold under the orders of the court belonging to the original owner, Monjeau, from whose possession it had been taken by said receiver in said chancery proceedings under the orders of said court. As stated above, there was in fact no sale of tliisi property made by the receiver, and the fact that he reported a sale and accounted as such receiver for the proceeds of a pretended sale did not operate to divest the property rights of the said Monjeau in and to said wagons and mules. The amount paid by the said receiver into the court as the proceeds of such pretended sale was a gratuitous and voluntary payment by him. It i® insisted that as Monjeau received the benefit of the fund paid into court by said receiver as proceeds from the pretended sale, he is thereby estopped from denying the plaintiff’s rights to said property, and his vendee, the defendant in this action, with knowledge, of these facts is likewise estopped. Whatever may be the rights of the plaintiff against the said Monjeau for accepting benefits under plaintiff’s report and accounting as receiver we do not care to express any opinion as to the same, as that question is not before us; but it is quite clear that the report of the sale, when in fact there was no sale, and the voluntary and gratuitous accounting of the receiver and the payment of the funds into the court, did not transfer the title to the wagons and mules to the receiver.

So, under neither phase of appellant’s contention, whether as having a general property right, or a qualified and 'special property right, could he recover in this form of action. The title to the property could not pass under a mere report of sale, when in fact there was no sale. As receiver, he had no qualified right with immediate right of possession at the time of suit brought, for his duties as receiver with regard to the property had "ceased.

As stated above, the court committed no error in refusing the general charge requested by the plaintiff and .giving it.at the instance of the defendant.

Affirmed.