Watkins v. Madison County Trust & Deposit Co.

• Decision Date: 06 February 1928
• Docket Number: No. 125.,125.
• Citation: 24 F.2d 370
• Parties: WATKINS v. MADISON COUNTY TRUST & DEPOSIT CO.
• Court: U.S. Court of Appeals — Second Circuit

24 F.2d 370 (1928)

WATKINS v. MADISON COUNTY TRUST & DEPOSIT CO.

No. 125.

Circuit Court of Appeals, Second Circuit.

February 6, 1928.

Amariah F. Freeman, of Detroit, Mich., John A. Johnson, of Morrisville, N. Y., and Charles A. Hitchcock, of New York City, for plaintiff in error.

Charles R. Coville and Coville & Santry, all of Oneida, N. Y., for defendant in error.

Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges.

L. HAND, Circuit Judge (after stating the facts as above).

When the defendant took over from Hervey E. Eaton's executrix the bonds and bank account which made up the only assets it got, it did so as administrator, and necessarily under claim of title. Immediately thereafter it began to collect the income and to dispose of it, and of part of the principal, in accordance with the will and codicil, and this it continued to do for over nine years before the writ issued. This being an action for conversion, the period of limitation is six years under section 48 of the New York Civil Practice Act, which controls as well here as in an action in a New York court. The statute began to run at once, because the possession was wrongful from the outset, and no subsequent demand and refusal could start it afresh. Mills v. Mills, 115 N. Y. 80, 21 N. E. 714; Wood v. Young, 141 N. Y. 211, 36 N. E. 193; Keys v. Leopold, 241 N. Y. 189, 149 N. E. 828. Thus the action is barred.

The plaintiff answers that until September, 28, 1925, when the defendant's final account was approved, and it was ordered to distribute the remaining assets, he could not have brought this action without invading the possession of the Surrogate's Court of Madison County. Byers v. McAuley, 149 U. S. 608, 13 S. Ct. 906, 37 L. Ed. 867; Farrell v. O'Brien, 199 U. S. 89, 25 S. Ct. 727, 50 L. Ed. 101; Waterman v. Canal-Louisiana Bank, 215 U. S. 33, 45, 30 S. Ct. 10, 54 L. Ed. 80. We decided in Watkins v. Eaton, 183 F. 384, that the plaintiff could not sue to compel Eaton to deliver the assets to him as the true owner, and the plaintiff attempts to use that decision as authority for the notion that the present suit would not lie until the defendant, Eaton's successor, had ceased to hold as an officer of the surrogate. But the action, being for conversion in seizing the plaintiff's property without warrant of law, depends upon the defendant's wrongful act. As such it lay as well when the defendant took over the assets as it ever could, for it is not possessory, and judgment would not result in any disturbance of the assets. True, satisfaction would pass whatever title the plaintiff had; but that is irrelevant. The wrong, like any other tort, created a liability, and the liability could be put into a judgment; but the judgment would only be a debt, chargeable against the defendant's individual assets at any rate. Nobody has ever questioned the power of a court of general jurisdiction to entertain an action of trover against an executor individually for a conversion by himself. Goulding v. Horbury, 85 Me. 227, 27 A. 127, 35 Am. St. Rep. 357; Rough v. Womer, 76 Mich. 375, 43 N. W. 573; Yeldell v. Shinholster, 15 Ga. 189; Fredenburg v. Horn, 108 Or. 672, 218 P. 939, 30 A. L. R. 1153. All that has ever been doubted is as to whether action also lies against him in his representative capacity. De Valengin v. Duffy, 14 Pet. 282, 290, 291, 10 L. Ed. 457; Van Slooten v. Dodge, 145 N. Y. 327, 39 N. E. 950.

Watkins v. Eaton (C. C. A.) 183 F. 384, is...