Brazier v. Ansley

• Decision Date: 30 June 1849
• Citation: 33 N.C. 12,11 Ired. 12,51 Am.Dec. 408
• Court: North Carolina Supreme Court
• Parties: GROVES M. BRAZIER v. JAMES ANSLEY.

11 Ired. 12

33 N.C. 12

51 Am.Dec. 408

GROVES M. BRAZIER

v.JAMES ANSLEY.

Supreme Court of North Carolina.

June Term, 1849.

To sustain the action of trover, the right of property in the thing claimed and of possession, at the time of the alleged conversion, must be vested in the plaintiff.

A cropper has no such interest in the crop, as can be subjected to the payment of his debts; while it remains in mass, until a division, the whole is the property of the landlord.

The doctrine of appropriation, as constituting a delivery and thereby passing the title to the purchaser, arises in cases of a sale of goods generally, as distinguished from the sale of a specific chattel. And when a less quantity, out of a larger, is the subject of the contract, then no property passes to the purchaser until a delivery; for until then the goods sold are not ascertained.

The vendor may appropriate the quantity purchased by separating it from the bulk: but the appropriation is not complete until the vendee assents to take the separated portion.

The cases of the State v. Jones, 2 Dev. and Bat. 544-- Hare v. Pearson, 4 Ired. 77, and Lewis v. Moody, 4 Dev. and Bat. 323, cited and approved.

Appeal from the Superior Court of Law of Chatham County, at the Spring Term 1850, His Honor, Judge BATTLE, presiding.

The following is the case sent up from the Court below:

This was an action of trover for a parcel of corn.--Plea, not guilty.

On the trial the plaintiff introduced a witness named Brown, who testified, that, during the year 1845, he worked with the defendant on a farm of the latter and was to have a fourth part of the corn made upon it for his services; that, before the corn was gathered, he sold his interest in it to the plaintiff for $40; that wishing to leave the farm, the plaintiff sent some hands to assist in gathering the crop, but the defendant objected to the arrangement, whereupon it was agreed between the plaintiff and defendant, that the latter should gather the crop, for doing which he was to have five barrels of corn, and that he would notify the plaintiff at each division. Upon cross examination the witness stated, that he became indebted to the defendant for some articles furnished him during the year, and that he agreed to pay the defendant when he sold his corn. Another witness, Mr. Marks, was then called and stated, that, some time in the Fall of 1845, he was called upon to see the corn measured, that both the plaintiff and the defendant were present, when the latter measured the corn by putting three fourths of it in one heap and the remaining fourth in another, and that he then claimed to take five barrels and a sufficiency to pay Brown's account from the smaller heap, to which the plaintiff objected, saying, that the five barrels ought to be taken from the whole quantity before division, and that there was no claim upon it for Brown's account.--The parties disputed for some time about this matter, when the plaintiff went off, saying, he would have nothing more to do with it. The witness stated further, that, if all the defendant claimed had been allowed, there would have remained only a few bushels of corn for the plaintiff, and that there was no final delivery of any part of it to the plaintiff.

The plaintiff having closed his case, the defendant moved that he should be non-suited upon the ground that the action of trover could not be maintained, because no part of the corn had ever vested in the plaintiff, and that there was no demand before suit brought.

The motion was resisted upon the ground, that the defendant was estopped to deny that the plaintiff had acquired Brown's share of the corn, for the reason that he had ratified the contract made by the plaintiff and Brown.

The Court being of opinion that the action could not be maintained, the plaintiff submitted to a judgment of non suit and appealed.Haughton, for the plaintiff .

W. H. Haywood, for the defendant .

NASH J.

To sustain the action of trover, the right of property in the thing claimed, and of possesion at the time of the alleged conversion, must be united in the plaintiff, and h...