Swope v. Paul
| Decision Date | 27 April 1892 |
| Docket Number | 458 |
| Citation | 31 N.E. 42,4 Ind.App. 463 |
| Parties | SWOPE v. PAUL ET AL |
| Court | Indiana Appellate Court |
From the Morgan Circuit Court.
Judgment affirmed.
J. V Mitchell, R. N. Lamb and R. Hill, for appellant.
W. R Harrison, J. H. Jordan and O. Matthews, for appellees.
The appellant sued the appellees for unlawfully taking and carrying away and unlawfully converting to their own use certain personal property of which the appellant was lawfully possessed.
zThe appellees answered by general denial. A jury returned a verdict for the appellees. The appellant's motion for a new trial was overruled.
The discussion of counsel in this court relates in great part to the admission, over the appellant's objections, of evidence tending to prove that the property in controversy was owned by one William Swope, son of the appellant, Samuel Swope; that it was mortgaged to the appellant by said William for the purpose of defrauding his creditors, and was accepted under the mortgage by the appellant with knowledge on his part of the mortgagor's fraudulent intent; that the appellee Eli Jackson recovered a judgment against said William Swope, and caused execution to be issued thereon to the appellee James W. Paul, sheriff, and that he, as sheriff, levied the execution upon the mortgaged property, and sold it to his co-defendant to satisfy the execution.
It is contended that this evidence was not admissible under the issue formed, and that it could not be admitted properly except under an affirmative answer setting up the facts which it tended to prove.
The complaint alleged generally that the appellant was lawfully possessed of the property, without showing the origin of his possession or alleging the derivation of his right thereto. He was not restricted to the proof of any particular origin of a lawful possession.
Under the general denial the appellees were entitled to introduce evidence tending to prove that the pretended title upon which the appellant's possession was based, as developed by the evidence, was void as against the appellees, and that the disturbance of that possession by the appellees was not wrongful.
To support an action for conversion it must be shown that the plaintiff, at the time of the conversion, had a general or special property in the goods and the possession or right of possession. Picquet v. McKay, 2 Blackf. 465; Traylor v. Horrall, 4 Blackf. 317; Coffin v. Anderson, 4 Blackf. 395; Barton v. Dunning, 6 Blackf. 209; Grady v. Newby, 6 Blackf. 442; Redman v. Gould, 7 Blackf. 361.
In an action for conversion the defendant may show title in a third person. Schermerhorn v. Van Volkenburgh, 11 Johns. 529.
In Coffin v. Anderson, supra, the declaration charged the defendant with having converted certain bank notes belonging to the plaintiff. It was held that a special plea that the notes belonged to a third person was an indirect denial of the plaintiff's property in the notes, and a denial in argumentative form of the alleged conversion, and that such defence, amounting to a good bar to the suit, should have been taken advantage of under the general issue.
In Bricker v. Hughes, 4 Ind. 146, it was held that in trover, under the general issue, the plaintiff must recover upon the strength of his own title and right of possession, and not upon the defendant's want of title.
In replevin the plaintiff must rely upon his own title, and not upon the want of title in the defendant; and under an answer of general denial the defendant may give any evidence tending to show want of title in the plaintiff, and hence may show title in himself or in a third person. Davis v. Warfield, 38 Ind. 461; Kennedy v. Shaw, 38 Ind. 474; Thompson v. Sweetser, 43 Ind. 312; Sparks v. Heritage, 45 Ind. 66; Caldwell v. Bruggerman, 4 Minn. 270.
In Woodworth v. Knowlton, 22 Cal. 164, an action of replevin against a sheriff, who had attached the goods as the property of a third person, it was held that an answer that at the time of the levy upon the property it was owned by said third person and in his possession, was not new matter, and was but another form of denial of the plaintiff's ownership and right of possession set forth in the complaint.
In Branch v. Wiseman, 51 Ind. 1, which was an action of replevin, it was held that under an answer of general denial the defendant might prove that he was a constable and held the property as such by virtue of a levy made thereon by him under an execution in his hands, issued on a judgment against a third person, and that the property was owned by the plaintiff and such third person jointly as partners.
Farmer v. Calvert, 44 Ind. 209, was an action of replevin. The defendant answered by a general denial and by a special paragraph alleging, in substance, that he was sheriff, and as such seized and held the property by virtue of a writ issued in attachment proceedings against the plaintiff's son, who was the owner of the property. The plaintiff in reply denied generally the allegations of the answer, and denied specially that his son was the owner, and reasserted the plaintiff's ownership. The plaintiff proved the purchase of the property from his son. The defendant introduced evidence tending to show that the sale was made by the son to defraud his creditors, and that the plaintiff was aware of such purpose. The court said: "We think the evidence was within the issue, and that the question was raised by the pleadings, without specially pleading the facts, whether such sale was made in good faith or fraudulently."
Lane v. Sparks, 75 Ind. 278, was an action of replevin. There was an answer of general denial. There was also an affirmative paragraph of answer, which the court struck out, alleging, in effect, that the defendants held the property under an execution issued on a judgment against the owner of the property, who, after the rendition of the judgment and before the issuing of the execution, for the purpose of defrauding his creditors, transferred the property to the plaintiff. It was held that, if the transfer to the plaintiff was fraudulent, the property, so far as the vendor's creditors were concerned, remained in the vendor; that the plaintiff could only recover upon the strength of his own title, and that the real defence presented by the special answer was property in a third person, the execution debtor, and was included in the answer of general denial.
In Robinson v. Frost, 14 Barb. 536, an action for conversion, it was held that an answer of general denial denied not only the conversion, but also the plaintiff's title, and that under it evidence that the plaintiff had no title to the property was admissible. See Jones v Rahilly...
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