Burk v. Baxter

• Decision Date: 30 September 1833
• Citation: 3 Mo. 207
• Parties: BURK v. BAXTER.
• Court: Missouri Supreme Court

3 Mo. 207

BURK

v.BAXTER.

Supreme Court of Missouri.

September Term, 1833.

APPEAL FROM THE CIRCUIT COURT OF CLAY COUNTY

TOMPKINS, J.

Burk sued Baxter in the Circuit Court of Clay county, and judgment being there given against him, he brought the cause by appeal into this court.

The form of action is trover. The record shows that Baxter, the defendant in the Circuit Court and appellee here, in character of constable, sold some stills which were in the possession of the plaintiff by virtue of an execution directed against another person than the plaintiff in this cause. The stills were set up in the usual way, and it was not proved that Baxter either pulled them down or assisted in doing it: the act of levying and selling was the only evidence of conversion. After the evidence was submitted to the jury, the plaintiff prayed the court to instruct them, that if they found that Baxter, acting as a constable, sold the stills, such sale amounts to a conversion, and that they must find for the plaintiff. Second. That to constitute a conversion of said stills, by the defendant levying and selling the same as constable, it was not necessary that he should lay hands thereon, or take them into actual possession; but that it is sufficient that he should apprize the party in possession that he did seize and sell them in that character. Third. That the stills are personal property and not fixtures to the freehold. The jury having found a verdict for the defendant, the plaintiff moved for a new trial, because, as he alleged, the court had misinstructed the jury. The refusal of the instructions prayed, and of the new trial, are assigned for error. The points to be decided are, first. Whether the stills in the situation mentioned are personal property. Second. Whether they being determined to be such, the act of levying and selling amounts to a conversion.

First. The case of Hunt v. Mullanphy, 1 Mo. R. 508, is in point. The evidence in that case was brought up in the form of a special verdict. The property contended for was a copper kettle built into a furnace erected for that purpose so as to hide the kettle, except the edge or mouth of the same. The furnace was connected with the chimney of a house by a flue, so as to take the smoke from the furnace into the chimney, through an opening made for that purpose; and the kettle and furnace might have been removed without any other injury to the chimney than laying bare the opening made in it to admit the smoke from the...