Dowd v. Wadsworth

• Citation: 13 N.C. 130
• Court: United States State Supreme Court of North Carolina
• Decision Date: 30 June 1829
• Parties: BURTON W. DOWD v. FLORA WADSWORTH.

13 N.C. 130

BURTON W. DOWD

v.FLORA WADSWORTH.

SUPREME COURT OF NORTH CAROLINA

JUNE TERM, 1829

FROM MOORE.

1. Where a writ was to answer "A, guardian of B," the words "guardian of B," was held to be but matter of description, and the suit to be the suit of A, not of the ward; evidence of the ward's title is therefore irrelevant.

2. Possession accompanied with a claim of title is a conversion. But a mere bailee who claims no title either for himself or his bailor, and upon a demand of possession only asks for time to surrender the property to his bailor, is not guilty of a conversion.

3. One who is in possession of the property of another is bound to surrender it upon the demand of the owner; but if he does not know the applicant to be the owner, he has a right to reasonable proof of that fact.

Principles of law in respect to what constitutes a conversion discussed by HENDERSON, C. J.

TROVER for a horse, brought by the plaintiff in his own name as "guardian of Daniel Blue."

The cause was tried, on the plea of not guilty, before his Honor, Judge DANIEL, on the last circuit.

The plaintiff proved a gift of the horse to his ward, Daniel Blue, by his grandfather, John Wadsworth, the late husband of thedefendant, and that he had by his will bequeathed all his personal estate to the defendant during her life. The executor of John Wadsworth lived at a distance from the defendant, and in another county. All the property of the estate, together with the horse in dispute, was left by him on the plantation where the testator died, where also the defendant continued to reside—she contending that the horse had never been given to Blue by the testator, but that it continued to be part of his estate. It was in proof that after the death of her husband the defendant used the horse about the plantation; that she lent it to one of the witnesses to go to Fayetteville, and also to another person to go a short journey.

The plaintiff demanded the horse of the defendant for his ward; she answered that it was not in her possession, but in that of the agent of the executor, who lived some miles off; that she should do nothing until she saw the executor, and that she did not know that she would give it up at any rate. There was no proof of the plaintiff's appointment as guardian.

His Honor instructed the jury that if they were satisfied that the plaintiff had title to the property, their next inquiry should be the fact of a conversion by the defendant. That on this point it was not necessary for the plaintiff to prove a demand by him and a refusal by the defendant, when the horse was in her possession; that it was sufficient

if he proved to their satisfaction that the defendant had, since the death of her husband exercised acts of ownership over it inconsistent with his title.

Under this charge a verdict was returned for the plaintiff, and the defendant appealed.

HENDERSON, C. J. I am somewhat at a loss to say what this Court, as a reviewing court, should do as to the error in bringingthe suit. No doubt it was intended to be the infant's suit; it was so considered throughout. The trial was upon the infant's title, yet it is the suit of the guardian—it is brought by him in his own name; for although he describes himself as guardian of the infant, that is but matter of description, and does not make it the suit of the infant. The Court below, I think, should have rejected the whole of the evidence as irrelevant; for it did not tend to establish title in the plaintiff, but in his ward. I do not know what else we can do but to grant a new trial. The Superior Court may, under our act for the amendment of the law, and particularly under our construction of that act, permit an amendment upon terms, if it should be thought proper.

The counsel for the...