Huddleston's adm'r v. Currin , 23 Tenn. 237 ( 1843 )

Reese, J.

.delivered the opinion of the court.

This is- an action of trover to. recover the value .of a horse, alledged to have been converted by defendant. The horse was not, and had never been in the actual possession of defendant: he was included among other property in a deed of trust, made by one Charter to defendant as trustee, to secure the debts of third persons, and the trustee was empowered, after the lapse of twelve months, to sell the property. This suit was brought within the twelve months; and the only'evidence of conversion is, that Currin being asked by plaintiff if the horse was in the deed of trust, said be did not know; arid being inquired of, whether, if so included, he would riot surrender all claim to the horse, he replied that he would not. The court charged the jury, that during the .twelve months previous to the time limited in the deed of trust for the sale of the property, the possession .of Charter was consistent with the title of Currin; and if by the understanding of the parties,-the property during the. twelve months was to remain in the possession of Charter, and did so remain, then the mere refusal of Currin, the trustee, to surrender his claim by virtue of the deed of trust, would not amount to an act of conversion in him..

We are unable to perceive any error in this charge of the court. If the deed of. trust be.silent on the subject of possession — if the trustee has no present power to' sell, and if the understanding or agreement were that the grantor should retain possession of the. .property till the sale — the trustee does no ' wrongful act, is-guilty-of no-conversion, when he simply refuses to relinquish the title to the property.

Let the judgment be affirmed.