Stearns v. Vincent

• Decision Date: 27 February 1883
• Court: Michigan Supreme Court
• Parties: STEARNS v. VINCENT.

15 N.W. 86

50 Mich. 209

STEARNS v. VINCENT.

Supreme Court of Michigan

February 27, 1883

The rule of law that one who has peaceable possession of chattels by claim of right may maintain trover against a wrong-doer who converts the chattels to his own use, and that not only is his possession evidence of title in his favor, but the wrong-doer will not be suffered to defend himself by showing title in a third person with whom he does not connect himself, has no application to a case where the possession is denied by the defendant and he offers to show by evidence that the plaintiff has parted with both the possession and title, and it is error to exclude such testimony.

The nature of plaintiff's possession in such a case may be shown on his own cross-examination.

When the undisputed facts show that the lower part of a building is used as a store and the upper part as a private dwelling and that the common entrance to the rear of the building is by a door, whether the store is part of the dwelling is not a question of fact to be submitted to a jury, but a question of law to be decided by the court; and when the court leaves such question to the jury, with the further instruction that if they find that the entire building was a dwelling, an officer who broke open this door to seize goods in the store under an execution in his hands committed a trespass, it will be error for which the judgment will be reversed.

Error to Mecosta.

J.H Palmer and M. Brown, for plaintiff.

Morris & Uhl, for defendant and appellant.

COOLEY, J.

The declaration in this case contains three counts.

The first count recites the recovery of a judgment in the circuit court for the county of Mecosta by the copartnership of Charles Root & Co. against the plaintiff for the sum of $3,717.50 damages and $265.55 costs; the issue of an execution thereon April 17, 1878, and the delivery of the same for service to the defendant, who was then sheriff of said county; it avers that by virtue of such execution the defendant levied upon a stock of dry goods and notions belonging to the plaintiff consisting of a great number of separate pieces, and duly advertised them for sale to satisfy the judgment; that at the time and place appointed for sale a large number of persons attended as bidders, and it then and there became and was the duty of defendant to offer for sale and sell said stock of dry goods and notions in small parcels, but that in disregard of that duty he offered and sold the whole stock as one parcel, and the same was struck off to the plaintiff in the execution for the sum of $1,500 which was greatly below the value and below what the goods would have sold for in parcels; to plaintiff's damage etc.

The second count recites the same judgment, execution and levy avers that there was included in the levy goods to the value of $250 which by the law of the state were exempted from sale on execution as stock in trade for the plaintiff, and that defendant in disregard of the exemption proceeded to sell and did sell all the said goods, including the amount so by law exempted. The third count is an ordinary count in trover for the conversion of the stock of goods. The plea of the defendant is the general issue without notice of any special defense. On the trial the plaintiff proved by one Webster that he was the officer who made the levy, and that he made it as under-sheriff of the defendant; that he first attached the goods under a writ of attachment against the plaintiff issued as the commencement of the suit in which the judgment was recovered; that the goods at the time of the attachment were in a brick store in Big Rapids, the second story of which was occupied by the plaintiff living with her husband and children, as a dwelling-house; that the store was closed at the time, and he obtained access by prying the back door out sufficiently to enable him to insert a stick and raise with it the bar by which the door was fastened.

The plaintiff was then sworn as a witness on her own behalf, and testified to her occupying the second story of the store as a dwelling-house; that at the time of the attachment she was in possession of the lower story and of the goods which were there, and was engaged in the mercantile business, and that Webster came and took the goods away without her consent on January 15, 1878. On cross-examination she was asked in what capacity she was engaged in business at that time, and replied that she supposed she was acting in possession of her own goods. She was further asked whether she had not four days before sold out the stock of goods to one Clark. The question was objected to, and was ruled out by the court as not proper cross-examination. She was also asked other questions the purpose of which was to show that at the time of the seizure she was not owner of the goods and did not claim to be, and that her possession was that of agent for Clark; but all these questions were overruled. Subsequently the defendant attempted to prove the same facts by other witnesses, but was not allowed to do so, on the ground that defendant having wrongfully taken property from the possession of the plaintiff, he could not excuse himself by setting up title in a third party. The ruling of the court appears to have been deliberate and after full argument, and the judge assigned his reasons as follows:

"I have listened with a good deal of interest to the authorities cited, and also the arguments of counsel upon this question, because it is a question of a good deal of importance. My mind was very well fixed at the close of the argument last evening, and since that time I have taken occasion to examine authorities, both those which have been cited by counsel, and several which have not been. The plaintiff's theory in this case is as follows, which is substantiated by proof which may be satisfactory to the jury, making a prima facie case, like this: That on the fifteenth day of January, 1878, the plaintiff in this suit was in possession of a certain stock of goods and claiming the possession by right of ownership; also, it is claimed that on the evening of that day--the fifteenth of January, 1878--this defendant, by his deputy, forcibly obtained possession of that stock of goods, by breaking open or forcing open the rear door. It is claimed by the plaintiff that this defendant went there--or we shall so assume--the same as any other individual would have gone, having no other rights than any other individual to do what he did. Following the case in that light, we will see how the matter stands: Supposing that Mr. Webster had been armed with no process whatever, and had broken into the store, and had taken possession and maintained it, and converted the property; in order to escape liability, he must justify in some way. The theory of the plaintiff is that he cannot say when prosecuted for the offense--which it would be an offense undoubtedly--that he cannot say to the party in possession, when prosecuted for this illegal transaction: 'You have no right to that property; I had as much right to it as you had, for you had none. I don't claim to have had any right. You had none either, consequently I am not liable to you. If I am liable to any one, I am liable to somebody else.' That is the position, as I understand it, that the plaintiff really takes.

"Now the theory of the defense is this: That the man who commits the wrong can say to the plaintiff: 'You had no right to the possession; you had no ownership. I had none either; but at the same time I can justify my acts and defeat your recovery by saying to you that you had no right either--neither of us had any right; and if I am to be prosecuted and recovered against, it must be by somebody else besides you.' Now the question is, which is the more reasonable, and which is sustained by the weight of authority? If the person in this case entering the premises and taking possession of the property was armed with a lawful writ of attachment, and prosecuted that writ to effect in legal manner, he has a perfect defense. I mean to say if there was a claim against this plaintiff, and that claim was afterwards reduced to judgment and an execution issued in a legal manner, and all the proceedings were legal, then of course he has a perfect defense; but in case he should fail to do that, the question is, has he got any? He certainly has none, unless it is the fact that he can say to the plaintiff: 'You had no right, nor I either; therefore I am not to suffer for what I have done. The property in this case belonged to Mr. Clark; if he has got any grievance it is his business to show it, and not yours.' I am inclined to think that the position is entirely untenable; that no one has the right to screen himself from liability in a case of this nature by showing that the party from whom he took the property had no right there. Now to maintain an action of trover it is necessary in many cases to show the mere possession. In this case the plaintiff claims possession, and shows it by satisfactory evidence until something better appears, by right of ownership. I think in this case that the weight of authority is strongly in favor of the position taken by the plaintiff. The objection to the testimony offered will be sustained."

The defendant by his counsel then made the following offer "The defendant offers to show that the plaintiff at the time of the seizure of the goods in controversy was a mere clerk and servant of one Alfred L. Clark, her father, who was then the sole owner, and in the actual and exclusive possession of the goods in question, and of the store containing them, and that the plaintiff had no general or special property in the goods, or possession thereof." This offer was overruled, the...