Duggan v. Wright , 157 Mass. 228 ( 1892 )

Barker, J.

1. The declaration was in the form prescribed by the Pub. Sts. c. 167, § 91, for trover, and is sufficient to allow proof of all the facts necessary to maintain an action of that nature. The allegation that the defendant has converted the plaintiff's property to his own use is not an allegation of a conclusion of law, but of a fact which may be described as composite, and it allows evidence to be introduced of all such unjustified dealing with the property named as may tend to show a wrongful taking and disposal of it to the prejudice of the plaintiff’s rights. Wells v. Connable, 138 Mass. 513. The allegation that the property converted was the property of the plaintiff is not an averment that the plaintiff was the absolute owner, but makes admissible any evidence showing that the plaintiff stood in such a relation to the property that she has a right to maintain the action. The remedy has long been the usual one employed by mortgagees of personalty, and cannot be defeated by technical objections such as are urged by the defendant. Alden v. Lincoln, 13 Met. 204. Robinson v. Sprague, 125 Mass. 582. The proof of a written demand was evidence of a subsidiary fact showing conversion, and, under the construction given to the statute form of declaration in trover by the uniform practice of the courts, was properly admitted. The proof of a mortgage title in the plaintiff supported the allegation that the articles converted were her property, and was not a variance.

2. The written demand upon the defendant was sufficient. The objection urged is merely that it was addressed to “ Ansel Wright, Esq.,” and did not designate him as a deputy sheriff. The statute requires no designation of the attaching officer, but merely that the demand shall be delivered to the attaching creditor, or to the officer. Pub. Sts. c. 161, §§ 74, 75.

3. It was clearly within the discretion of the presiding justice to exclude evidence of the value of the property ten months after the alleged conversion; and therefore he might properly decline to receive evidence of the opinion of a witness as to whether, under a supposed state of facts, there would have been any change in its value during that interval. It does not appear that there was any lack of evidence as to its value at the time of conversion, and,to have allowed the question would have introduced a purely collateral issue.

4. The first and third rulings requested by the defendant are based upon a misconception of the law. They proceed upon the theory that money of the wife which passes into the hands of the husband, even as her agent, becomes ipso facto the property of the husband, without regard to justice or the intentions of the parties. The doctrine that a husband may be the agent of his wife is too familiar to need the citation of authorities; and the law does not compel a husband to deprive the wife of her own money, if it comes to his hands as her agent, nor does such possession of her property by him change its ownership.

5. We see no reason why a wife, who has become the owner of a valid mortgage upon the personal property of her husband, may not pursue the remedy given by statute against an officer who attaches the property on a writ against her husband. She is in no sense a party to that suit, or to any suit or proceeding against her husband. There is in the statute no exception which prevents her from enforcing against third persons her rights as mortgagee. By the statute she can receive, hold, and manage personal property in the same manner as if sole. Pub. Sts. c. 147, § 1. Nor is her property liable to be taken on execution against him, except under circumstances not material to the present case. Pub. Sts. c. 147, §§ 8, 11.

Exceptions overruled.