Davis v. Charles M. Taylor.

• Decision Date: 30 April 1866
• Parties: JOHN C. DAVIS et al.v.CHARLES M. TAYLOR.
• Court: Illinois Supreme Court

41 Ill. 405

1866 WL 4611 (Ill.)

JOHN C. DAVIS et al.

v.CHARLES M. TAYLOR.

Supreme Court of Illinois.

April Term, 1866.

WRIT OF ERROR to the Superior Court of Chicago.

This was an action of trover brought by Charles M. Taylor against the plaintiffs in error. A trial by jury at the September Term, 1865, resulted in a judgment for the plaintiff for six hundred and fifty dollars and costs. The defendants below now prosecute this writ of error. The declaration alleged the conversion of a dwelling-house, the property of the plaintiff, by the defendants, to their own use. There was no bill of exceptions.

Messrs. D. C. & I. J. NICHOLES, for the plaintiffs in error.

1. Trover will only lie for a personal chattel, and not for fixtures or injuries to real estate. 2 Greenl. Ev. 522, § 635; 1 Cowan's Treatise, 291; Bacon's Abridgment, Trover, B.; Buffey v. Henderson, 8 Eng. L. & E. 305; Smith v. Benson, 1 Hill (N. Y.) 176; Overton v. Williston, 31 Penn. State, 155. And a building is prima facie real estate. Chatterton v. Saul, 16 Ill. 150; 2 Sand. Pl. & Ev. 880.

2. Defendants could not have been found guilty with proof of a joint conversion by all. 2 Sand. Pl. & Ev. 885; Nicholl v. Glenn, 1 M. & S. 588.

3. For a joint conversion by husband and wife, the husband alone is liable, and it is error to join the wife. Com. Dig., Trover, Y.; 2 Kent Com. 149; Reeves' Dom. Rel. 72.

4. It was error to render a judgment below without disposing of all the defendants. Warren v. Lewis, 1 Ben Monroe, 100; Dennison v. Lewis, 6 How. (Miss.) 517; Hutchinson v. Sinnis, 7 Humph. 236; Dow v. Rattle, 12 Ill. 373. Also, Barbour v. White et al., 37 Ill. 164.

Messrs. WARD and STANFORD, for the defendant in error.

1. Trover will lie for a house, where it is averred and proved to be personal property. Smith v. Benson, 1 Hill, 178; Jewett v. Partridge, 3 Fairf. (12 Maine) 243; Osgood v. Howard, 6 Green (6 Maine), 452; Dame v. Dame, 38 N. H. 429; Chatterton v. Saul, 16 Ill. 151.

2. It is objected that the declaration and judgment are against husband and wife for joint trover and conversion. But it does not appear from the record, the appellation of husband and wife is never once used. Still, after verdict, this is good. 1 Chitty Pl. 92; 3 B. & Ald. 685.

3. Misnomer must be pleaded in abatement. By appearing, the defendant admits himself to be the person sued, and the variance is immaterial. Jackson v. Crane, 1 Cow. 38; Tidd's Practice, 402; 1 Chitty Pl. 246; Hammond v. People, 32 Ill. 447; Frink v. Schroyer, 18 Id. 416.

Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

This was an action of trover brought by Taylor against John C. Davis, Mrs. John C. Davis, Sarah B. Young, and others, to recover the value of a frame house, described in the declaration as goods and chattels. The general issue was pleaded by all the defendants except Sarah B. Young, and the plaintiff recovered a verdict and judgment. There is no bill of exceptions in the record, and the case therefore presents no questions except such as arise on the summons, pleadings and judgment.

It is first urged that trover will not lie for a house. Whether it will lie or not, depends upon whether the house, at the time of bringing the suit, and as between these parties, was personal property. A house may be so erected as to be strictly personal property, or the defendant may be estopped by his own acts from denying it to be so; as where, for example, he has improperly removed it from the land of the plaintiff, or where he has given a chattel mortgage on it as personal property. Ogden v. Stock, 34 Ill. 527; Ballou v. Jones, 38 Id. 97. In such cases replevin or trover will lie in behalf of the rightful owner. In the present case the house was described in the declaration as personal property, and in the absence of a bill of exceptions, and in support of the verdict, we must presume the proof showed it to be such.

It is also objected, that trover will not lie against husband and wife, but the suit should be brought against the husband alone. This precise point was ruled by the Court of Kings Bench in Keynuth v. Hill, 3 Barn. & Ald. 685, on a motion in arrest of judgment. It was urged, that, as a married woman cannot acquire personal property in her own right, the conversion is the sole act of the husband, and must be so charged. But the court said the foundation of the action was not the acquisition of property by the defendants, but the deprivation of the plaintiff's property, and that the conversion might be by an actual destruction of the property, or by taking it from its true owner and delivering it to a third person. It was further said, that the wife could be guilty of this species of conversion as well as the husband, since the latter would acquire no property thereby, and the rule for arresting the judgment was discharged. We are disposed to follow the authority of this decision, as trover, like trespass, is in reality based upon the defendant's tort, and in trespass the husband and wife may be jointly sued.

Mrs. John C. Davis pleaded the general issue by the name of Christina Davis, describing...