Opinion
June Term, 1813.
From Hertford.
Where one purchases at sheriff's sale a quantity of lightwood, set as a tar-kiln, he has a right, unless forbidden by the defendant who owns the land, to go peaceably after the sale and remove it: because the article is too bulky to be removed immediately after the sale, and the law is the same of all cumbrous articles, such as corn, fodder, stacks of hay, etc.; but if defendant forbid the purchaser to go upon the land, he cannot then go, for his entry then could not be a quiet or peaceable one, and the law will not permit a man forcibly to enter upon another's possession to assert a private right which he may have to an article there. The purchaser may bring trover for the lightwood, and the refusal of the owner to let him go on the land to take it is evidence of a conversion, though he may never have touched the lightwood, and it should be left to the jury.
THIS was an action of trover for a quantity of lightwood set as a tar-kiln on the defendant's land, but not banked or turfed. Upon the trial it appeared that a judgment had been obtained against the defendant, on which an execution (303) was issued and levied on the said lightwood, which was duly advertised and sold and struck off to the plaintiff as the highest bidder. The plaintiff afterwards applied to the defendant for liberty to bank, turf and burn the kiln as it then stood, which liberty the defendant refused to grant. The plaintiff then demanded the lightwood, and proposed to bring his team and cart it off the defendant's land; whereupon the defendant replied, if the plaintiff came on his premises for that purpose he would sue him. There was no evidence of an actual conversion, and at the time the suit was commenced the kiln remained in the same situation in which it was when purchased by the plaintiff. The plaintiff was permitted to take a judgment for £ 20, the value of the kiln, with leave to the defendant to have the verdict set aside and a nonsuit entered, provided the court should be of opinion the plaintiff was not entitled to recover in this action on the foregoing facts, and on motion of the defendant the case was transmitted to this Court for the opinion of the judges. On this case the Court were divided in opinion.
To support an action of trover, it is necessary for the plaintiff to prove property and right of possession in himself and a conversion by the defendant. It is admitted in this case that the plaintiff has shown property and a right of possession in himself, but it is insisted by the defendant that he has committed no conversion. This leads to the inquiry, "What is a conversion?" Conversion, in legal acceptation, means the wrongfully turning to one's use the personal goods of another, or doing some wrongful act inconsistent with or in opposition to the right of the owner. It is a malfeasance, and the plea to the action is "Not guilty." This malfeasance, like all others, is capable of proof in divers ways, as by the confession of defendant, or when called upon to surrender the (304) property, his refusal affords a presumption that he has converted it to his own use; for otherwise he would not refuse. But this presumption, like all others, vanishes when the contrary appears.
In the present case the plaintiff calls upon the defendant for permission to dig earth and cover the kiln; the defendant refuses, and he not being bound to grant the permission, it is admitted that this refusal does not amount to a conversion. The plaintiff then formally asks a permission which the law had already afforded to him, and which defendant could not abridge or withhold. The defendant refuses and threatens the plaintiff with a suit, in case he should enter upon his premises and take away the lightwood; and the parties, no doubt, believed that it was in law necessary to obtain such permission to prevent the plaintiff from becoming a trespasser. This menace, it is said, amounts to a conversion, and it is the policy of the law to do away the necessity the plaintiff was reduced to of taking his property at the risk of a suit, though without foundation. However stupid the conduct of the defendant hath been, yet when we recollect that in legal understanding conversion is an act, and that in all instances where the words of a party are given in evidence it is with a view of inferring such act, it would seem irresistibly to follow that where there is clear evidence that no act has been done, it is equally as clear there has been no conversion. What has the plaintiff to complain of? Has the defendant injured his property? Has he used it in any way, or exercised any act of ownership inconsistent with the plaintiff's right? He has not. He has merely threatened to sue the plaintiff if he took the lightwood away, or entered upon his premises for that purpose, and it is admitted that no such action would lie. How, then, does this differ from a case where one man says to another, "If you plough your own horse, I will sue you for it"? The owner of the horse would incur the same risk by ploughing him after this menace (305) that the plaintiff would have incurred by entering upon the defendant's land and taking away the lightwood; and yet it would hardly be said that this menace was a conversion of the horse.
But a case has been cited from 3 Mod., 170, where in trover for a tree, upon demand and refusal, the plaintiff recovered. When that case is examined, it will turn out to be this: Trover was brought for fourteen lemon trees in boxes which were placed by the plaintiff in the garden of Lord Brudenell, by his lordship's consent. The premises were afterwards sold, and after passing through many hands, they came to the defendant, who refused to deliver the lemon trees to the plaintiff upon request. These trees were placed in a garden which was walled, and which plaintiff could not enter unless defendant would open the gate, and out of which he could take the trees only through the gate. The defendant by his refusal withheld from the plaintiff the enjoyment of his fruit trees. But it is worthy of notice that the conversion was not made a point in the case. In the present case the lightwood was as accessible to the plaintiff as to the defendant, and has not in any manner been withheld from him.
In 5 Bac. Abr., 279, title "Trover," it is stated that a demand and refusal of a piece of timber or other cumbrous article, when it has remained untouched, will not support an action of trover. Independently of this authority, I am of opinion, from the reason of the case, that this action cannot be supported, and that the rule for a new trial should be made absolute.
The lightwood which is the subject-matter of this action was legally levied upon and sold to the plaintiff. That sale gave the plaintiff a title to it. The kiln of lightwood could not be delivered and carried away like most other kinds of personal property; it was cumbrous and could only be (306) removed in the manner proposed by the plaintiff. If so, he had a right to remove it in that manner, and the defendant had no right to forbid him. Of course, the plaintiff's right was not impaired by the defendant's threat to sue him if he entered upon his land and removed the lightwood; his physical power to do himself justice still remained. Had that been opposed, then there would have been a conversion. Had the defendant sued the plaintiff for carrying away the lightwood, he could not have recovered, because the plaintiff only did that which the law gave him a right to do, that was, to enter on the defendant's land and carry away property to which he had acquired a title by a purchase under an execution, property which could be removed in no other way. The threat which defendant made was of no legal significance, and ought to have been disregarded by the plaintiff. If the lightwood had been within the defendant's inclosures and admittance had been denied, the case might have been different; but being in the woods and no barrier interposed, the idle threat of defendant could not amount to a conversion, and the rule for a new trial, I think, ought to be made absolute.
The action of trover is the legal remedy to recover damages for the unlawful conversion of a personal chattel. The lightwood was a chattel of this description, and the purchase under the execution vested in the plaintiff a right to it. The lightwood, however, being bulky, and too cumbrous to be immediately moved from the defendant's land on which it was sold, the law will presume, unless by some express and unequivocal act of the debtor such presumption should be destroyed, that it was left there by his consent and in his possession until the necessary arrangement could be made for (307) taking it away. In all cases where the consent of one man becomes necessary, and without which another cannot conveniently enjoy his property, the law presumes such consent to be given, unless the contrary expressly appears. Whenever, therefore, a man purchases heavy articles at a sheriff's sale, such as corn, fodder, haystacks, etc., which it is not presumable he is prepared immediately to take away, he may, if not prohibited by the debtor, return in a peaceable manner and lawfully enter upon the freehold, or into the inclosures of such debtor, or other person on whose land such articles were sold, for the purpose of taking them away. But in the present case such presumption ceased to exist the moment the defendant expressly prohibited the plaintiff from entering upon his freehold, and threatened him with a suit if he did enter. After such expressly prohibition, the plaintiff from entering upon his freehold, and threatened him with a suit if he did enter. After such express prohibition, the entry of the plaintiff could not be a peaceable and lawful one. The law will not permit one man to enter upon the possession of another for the assertion of a mere private right which he may have to an article of personal property, against the express prohibition of him in possession; such permission would be attended with consequences very injurious to the peace of society. We therefore think that the refusal of the defendant, as stated in this case, was such evidence of a conversion, as was proper to be left to a jury. The conduct of the defendant reduced the plaintiff to the necessity of asserting his right by an action at law. "If a man give leave to have trees put into his garden, and afterwards refuse to let the owner take them, it will be a conversion." Com. Dig. Action on the Case, title, Trover E. This cases differs from that to be found in Gilbert's Evidence, 262, and in 5 Bac. Abr., Trover B, where there was a refusal to deliver a beam of timber; for here was not only a refusal to deliver, but a refusal to suffer the plaintiff to take the lightwood into his possession and cart it away, coupled with a declaration that if the plaintiff entered upon his freehold for that purpose he would sue (308) him. The plaintiff was under no necessity to enter upon the defendant's land and thereby incur the trouble and expense of a lawsuit. We therefore think the rule for a new trial should be discharged.