DALLAS, Circuit Judge. This writ of error has brought up the record in an action of tort in which Effie C. Wilson was plaintiff and Samuel D. Hoffman and Francis A. Canfield were defendants. The plaintiff declared in trespass, and also, by separate count, in trover. It appeared, however, that the charge of trespass could not be sustained, and that a joint conversion by the'two defendants could not be established. Hence the case was properly tried as one of trover merely, and as against Samuel D. Hoffman only.
The chattels alleged to have been converted consisted of household goods, which were contained in a house in Atlantic City, N. J., known as* “Hawthorne Inn.” The plaintiff below had been put in possession of this house by a certain Mrs. Hartley under an agreement between them, the particulars of which are unimportant.
An action of ejectment for its possession was then pending by Hoffman against Mrs. Hartley, in which Hoffman subsequently obtained judgment, and upon execution on that judgment Effie C. Wilson was evicted. Prior thereto she had removed five suites of Hoffman’s bedroom furniture from the house, and had put other furniture in their place; and for the latter, although she had not restored the former, she was allowed to recover. But, in our opinion, these facts were, as to the whole case, conclusive against her.
Trover will not lie for anything which the plaintiff has not the immediate right to possess, and one who has not only voluntarily placed her goods upon the land of another, but has also taken therefrom goods of the landowner, has no right to reclaim her own without returning his. The question is not as to whether one trespass or .conversion may be set off against another.
It may be conceded that this cannot be done; but the law of torts deals with duties and rights as correlates, and to us it seems clear that the return of the defendant’s goods was a duty which the plaintiff was bound to dis 695 charge before she could lawfully demand those which belonged to herself. In Kimball v. Cunningham, 4 Mass. 502, 3 Am.
Dec. 230, it was said that where an exchange of chattels has been made in execution of a contract voidable for fraud, the innocent party to it cannot maintain trover for anything delivered by him while he still retains any part of the consideration he received; “for he shall not compel even the fraudulent seller to an action to recover back the property he has parted with in the exchange.” We adopt this statement of the law.
It was pertinent to the case in which it was made, and, a fortiori, it is applicable to this one, for the defendant below had not consented to part with anything, and had perpetrated no fraud. His goods were taken by the plaintiff without his_ knowledge, and no wrong whatever was committed by him.
This, it is true, gave him no right to keep what belonged to her, but the duty to relinquish what could not lawfully be retained was reciprocal, and therefore the fulfillment of that duty upon her part was essential to the existence of the right, necessarily asserted by her, to immediately possess the chattels of which she alleged she was wrongfully deprived.
The situation presented is simply this: The defendant in error, during her occupancy of the locus in quo under a claim of title which the judgment in ejectment determined to be invalid, took therefrom goods of the owner of the premises and placed goods of her own thereon.
This proceeding cannot be otherwise regarded than as one continuous and indivisible transaction, and therefore we are of opinion not only that she was debarred from recovery with respect to the furniture which she may have intended — but without Hoffman’s assent — to specifically substitute for the furniture she removed, but that the return of the latter was requisite to the maintenance of trover for any part of the chattels to which the action related.
The second specification avers that the Circuit Court erred in overruling the motion of the defendant below for binding instructions in his favor, and, as the views we have expressed sustain that specification, they completely dispose of the case, and no other of the errors assigned need be considered. The judgment is reversed.
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