Starnes v. Roberts

Lumpkin, J. (After stating the facts.) The principles set out in the headnote and the authorities there cited control the case. The evidence did not show such a relinquishment or waiver of the plaintiff’s right as against the defendant as to prevent a recovery. Had it been sought to recover the property from the person who purchased it from the defendant, a very different case would have been presented. Or if the evidence had shown that the plaintiff agreed for the defendant to sell the property before payment, this might have raised the question whether such sale would have been a conversion. The testimony, however, does not go to that extent. Some authorities go further than we feel called on to go in this case. Thus in Dows v. Dennistoun, 28 Barb. 393, the Supreme Court of New York declared that “An understanding, arrangement, or custom that the possession of the goods shall be intrusted to the vendee for the purpose of enabling him to realizo upon them, and thus provide the means for the payment of the price, can not be construed into an absolute transfer of the title to the property, as between the original parties to it, or persons having no greater equities than the original parties.” See also, on the general subject, Harding v. Metz, 1 Tenn. Ch. 610; Adams v. O’Connor, 100 Mass. 515; Fleeman v. McKean, 25 Barb. 474; 24 Am. & Eng. Enc. Law (2d ed.), 1065. The plaintiff in error insists that he was not in possession, custody, or control of the property when the suit was brought, and therefore there could be no recovery • against him. This contention is unsound. If it were sustained,'every defendant in a trover suit could defeat a recovery by showing that the conversion was complete before the action was brought. On the contrary, the conversion furnishes a basis for bringing the suit. Apparently the right of a person who has been incarcerated under bail process, and who is neither able to give security nor produce the property, upon showing to the presiding judge satisfactory reasons for the non-production, to be discharged from custody,-has been confused with the idea of defending against the recovery of a verdict in the main suit. The Civil Code, §4608, which regulates such a proceeding for discharge, expressly declares that it shall not in any way affect the right of the plaintiff upon the trial of the question of property involved in the suit. If the property has been placed beyond the [721] reach of the plaintiff and defendant, and is in the hands of a third person from whom it can not be .recovered, this may perhaps affect the right to claim a verdict for the property itself, but would not destroy the right to recover a money verdict. Judgment affirmed. All the Justices concur.