Hurd v. Darling

[381] The opinion of the court was delivered by Hebard, J. Two questions are presented by the case. 1. Did the plaintiff have such an interest in the hay, that, for its conversion, he can maintain trover ? 2. In case he cannot maintain trover, then can he- have a recovery against both the defendants upon the count in case 1 The first question must depend principally upon the written contract. By the contract between the plaintiff and Darling, the farm and other property was leased to Darling for two years, for which, by way of rent, Darling was to deliver to plaintiff on said farm one half of all the crops, except such as should be fed to the stock on the place. This letting the farm, and stipulating for the rent, is all matter of contract, and no more vests the title of these crops, or of any part of them, in the plaintiff, without a delivery, than any other promise to deliver a given quantity or value of property at a specified time and place. If the plaintiff had been the owner of the hay, or of any part of it, there was a sufficient conversion to maintain the action. The case of Tubbs v, Richardson, 6 Vt. 442, and the case of Sanborn v. Morrill, decided on the last circuit in Caledonia County, [15 Vt. 700] go upon the ground that a sale by one tenant in common of a chattel of his co-tenants interest, not being a destruction of the chattel, was not a conversion. But in this case the hay was actually consumed. On this point the plaintiff must fail for want of any title to the property. The count in case goes upon the ground, that the defendant Darling, before the expiration of the lease, refused to occupy the premises, or take care of the stock, and that the existence of the contract, the refusal on the part of Darling to fulfil it, and the ownership of the hay by the plaintiff, were facts well known to Amedon, — and the plaintiff thereupon alleifges that the defendants,' with intent to defraud the plaintiff, took and carried away'the hay. How far these facts might be the ground of an action against Darling in this form, it is not necessary to decide. Unless the plaintiff had such an interest in the property that he could maintain an action of trover for it, he cannot maintain this form of action against Amedon. If Darling had the legal ownership of the hay, he might sell it and Amedon might buy it, unless the sale could be [382] impeached for a fraudulent intent to defraud creditors, — and in that case the remedy must be sought in the appropriate action provided by the statute. The judgment of the county court is affirmed.