#### *Newsum v. Newsum.

February, 1829.

[19 Am. Dec. 937.]

Administrator — Sale of Chattel Not Belonging to His Testator-Liability to Owner.* — If an adm'r sell a chattel, whereof Ills intestate died possessed, but which in trnth belonged of right to another, and apply the proceeds to payment of his intestate's debts in due course of administration, without any notice of the right or claim of the true owner, he is personally liable to the true owner for the value, in trover brought by the owner against

Trover — Amount of Recovery by Trustee of Chattel. —It seems, that a naked trustee of a chattel is entitled to recover, in trover, not nominal damages only, but the full value.

Same — When Proof of Demand and Refusal Unnecessary.† — Proof of demand and refusal is never necessary in trover, where there is proof of actual conversion. „

„ Appellate Practice — Bills of Exception — Point Not Presented to Court Below. ‡ — Where exceptions are taken to opinions of a court given at the trial of a cause on specific points, the appellate court will examine no points but such as were presented to and decided by the court below, though from the matters slated in the bill of exceptions, there be apparently other points that might have been made.

Trover, in the circuit court of Norfolk, by William Newsum against Henry New-sum (in his own right) for a slave claimed by the plaintiff as his property, and charged to have been converted by the defendant to *38his own use. Plea, the general issue. Verdict and judgment for the plaintiff, for 684 dollars damages. The defendant filed a bill of exceptions to opinions of the circuit court given at the trial; which stated,

1. That the plaintiff, having first proved that the slave in question was, on the-day of March 1808, the property of R. R. Keeling, gave in evidence a deed of that date, executed by Keeling, and duly recorded, whereby Keeling, in consideration of his wife Amey having joined him in the sale and conveyance of lands of her own inheritance, conveyed the slave in question (among others) to the plaintiff, in trust, that he should permit Amey, the wife, to hold possession of the property, and enjoy the profits, to her separate use, during her life; and after her death, in trust to the use of the children .of the marriage, then born or afterwards to be born, during their minority; and after the youngest should attain to full age, in trust for such of the children as the wife should appoint, and in default of such appointment, to be equally divided among them. The plaintiff then proved, *that Mrs. Amey Keeling during her lifetime, sold the slave in question to one Pendred, and died within five years next before the institution of this suit: Pendred died in possession of the slave: administration of Pendred’s estate was granted to his widow: and she married Henry Newsum the defendant; who having thus acquired the possession of the slave, sold him in his representative character, before the institution of this suit, to one Bonney for 450 dollars, who afterwards sold him to one Adams. But the plaintiff adduced no proof, either of a demand of the slave of the defendant, or any notice to him of the plaintiff’s title, prior to the institution of the suit. Whereupon, the defendant’s counsel prayed the court to instruct the jury, that unless such demand and refusal were proved, they should find for the defendant, because as he acquired possession of the slave lawfully, and had parted with it prior to any demand of the property, and without notice of any defect in his intestate’s title, the evidence did not shew a tortious conversion of the slave to the. defendant’s own use, and the action did not lie against him. But, the court refused to give the instruction; and instructed the jury, that, if from the 'evidence, they believed there had been an actual conversion of the slave to the defendant’s use, proof of demand and refusal was not necessary.

2. The defendant’s counsel then moved the court to instruct the jury, that the action could not be maintained against the defendant, he having acquired posáession of the slave in his representative character, as above mentioned, and parted with it before the institution of this suit; but the court refused to give such instruction.

3. The defendant then offered in evidence the inventory and appraisement of Pendred’s estate, and the account of his administration thereof, regularly settled; in order to shew, that the price he had obtained for the slave had been credited to Pendred’s estate, in his account of administration, and paid to the creditors of that estate; and that there was a large balance due on the account, to the defendant, as the administrator. *But the plaintiff objected to the introduction of this. evidence; and the court (the facts first above stated as to the plaintiff’s title being admitted), sustained the objection and excluded the evidence; because the facts it was offered to prove, if proved, would not exonerate the defendant from the plaintiff’s action, or affect his right to recover.

To all these opinions the defendant filed exceptions, and applied to this court for a supersedeas to the judgment, which was allowed.

Stanard, for plaintiff in error.

This case presents the question, Whether an administrator, acquiring in that character a chattel of which his intestate died possessed, and selling it in the regular course of his duty, without notice of any adverse right, or of any defect in his intestate’s, title, be personally liable as for a wrongful conversion to his own use, at the suit of a person claiming title adverse to that of the intestate? There is no adjudged case-exactly in point. In the analogous case of an agent receiving property or money for his principal, and paying or transferring it to his principal, or devoting it to his use, if it afterwards appear, that the principal had no right, the principal and not’ the agent is liable. The possession of the slave, in this case, was cast upon the administrator by act of law: he was a mere fiduciary, and bound by the law to appropriate it to the use of his intestate’s estate: and in selling it, without notice of doubt or defect in his intestate’s title, and applying the proceeds in due course of administration, he was only discharging his bounden duty. The performance of his legal duty, was a just defence, and he ought to have been allowed to prove the truth of it. If he'had disposed of the subject, after notice of the adverse claim, such notice as a demand made would have given him, then he-.would have acted at his own peril, and been personally responsible for the conversion, But as no demand was made, and he had no notice of the adverse claim, his sale and application of the proceeds, was a conversion, not to his own use,, but to *the use ■ of his intestate’s, estate. It was the intestate that made the wrongful conversion: and the action lay against the administrator in his representative character, so as to charge his intestate’s estate, not against him, in his own right, to charge him personally. The equity of the statute (1 Rev. Code, c. 104, *4*64), gives trover against an executor or administrator for a conversion-by the testator or intestate in his lifetimes And this was the proper remedy in the present case.

The evidence of the plaintiff having been, adduced, as set out in the bill of exceptions, and the court, being asked to instruct the jury, “that the evidence did not shew a tortious conversion of the slave to the defendant’s own use, and that the action did not lie against -him,” refused the instruction. The title shewn by the plaintiff is therefore properly examinable. He *39shewed no title. For 1st, the act of limitations began to run, from the date of Mrs. Keeling’s sale to Pendred, instead of the date of her death; Pendred’s possession was, from the time of his purchase, adverse to the title of the trustee; and, if he held the slave five years, counting from the time of his purchase, such possession gave him title. Newby v. Blakey, 3 Hen. & Munf. 57. 2ndly, The plaintiff was a mere trustee, without power, in any manner or for any purpose, to alien the trust subject; but if he may maintain trover for this slave, and recover his value, he may thereby in effect alien him; for it is settled, that a recovery in trover, vests the title of the subject in the defendant of whom the value is recovered. The trustee, if he could maintain the action on his naked legal title, could only sue and recover damages pro interesse suo; but here he has recovered obviously the whole value. The cestuis que trust may also sue and recover damages pro interesse suo; and they too may recover the whole value again.

Conway Robinson, for defendant in error.

The questions raised by Mr. Stanard, as to the sufficiency of the plaintiff’s title to recover, and as to the just measure of damages, *are not presented by the record. This is not a demurrer to evidence, or a special verdict, but a bill of exceptions to opinions of the circuit court on specific points; and as there was no occasion, so there was no attempt, to state more of the evidence, than what would suffice to shew the relevancy of the points moved, and the decisions given, at the trial. There .was no general objection to the plaintiff’s title, in the circuit court: the objection was only, that his evidence did not shew a conversion to the defendant’s own use, and that the action did not lie against him, without proof of a demand and refusal.

The opinion first excepted to, was, that proof of demand and refusal was not necessary to maintain the action; no more. And, clearly, proof of demand and refusal, being only presumptive evidence of conversion, cannot be necessary, where direct, proof of actual conversion is adduced. 3 Starkie on ev. 1492, 1496. *

The other opinions of the court, stated and excepted to, amount in effect to this, that the facts, of the defendant’s acquisition of the slave in his representative character, of his having parted with him in the same character, and of his having disbursed the proceeds of sale in due course of administration, before the institution of the suit, all combined, constituted no good defence to the action. The circumstance of the possession of the property having been parted with by the defendant, is surely of no avail: nay, that was the very act of conversion. The manner in which he acquired the possession, cannot be material to the only inquiries proper to the case; namely, had the plaintiff just right to the property? And had the defendant converted it to his own use? There is no instance, in which the manner of the defendant’s acquisition of property belonging to another, has been allowed to justify or excuse a conversion of it. With regard to the application which the defendant made of the proceeds of sale, the right owner cannot be affected b3r that: *to him the evil is just as great, whether the defendant gave the proceeds of his property to others, or retained them to himself. Neither can the defendant’s want of notice of the defect of his intestate’s title, avail him. It is the duty of every man, who sells property, no matter in what character or under what pretence, to see that it belongs to himself, and not to his neighbour. And if it be granted, that the administrator’s conduct in this case was dictated by a sense of duty, and his motives and purposes fair, the personal loss he has incurred must yet be laid to his own fault or at least his misfortune, certainly not t© any fault of plaintiff.

*

Executors and Administrators — Liability to Owner for Detention or Sale of His Property. — With regard to the owner of the property, the executor’s (or administrator's) detention (or sale) is a wrong of his own, which subjects him personally, to a judgment for them, or their alternative value. Catlett v. Russell, 6 Leigh 861, citing *Newsum v.*Newsum, 1 *Leigh*86. On the (tuestion of the liability of an agent for the conversion of the property oi a third person, see *note*in 2 Va. Law Reg. 552; 5 Val. Law Reg. 51. See also, monographic *note*on “Executors and Administrators ” appended to Rosser v. Depriest, 5 Gratt. 6; monographic *note*on “Agencies” appended to Silliman v. Fredericksburg, etc., R. Co., 27 Gratt. 119.

†

Trover and Conversion — Necessity for Demand and Refusal Dispensed with. — Demand and refusal, being only evidence of conversion, need not be shown when there is sufficient proof of actual conversion. Haines v. Cochran, 20 W. Va. 724, citing *Newsum*v. *Newsum,*1 *Leigh*86. See monographic *note*on “Trover and Conversion” appended to Eastern Lunatic Asylum v. Garrett, 27 Gratt. 163.

‡

Appellate Practice — Point Not Presented to Court Below — Effect.—For proposition that, a point not raised in the court below cannot be passed upon in the appellate court, the principal case and Barrett v. Wills, *4*Leigh 114, are cited in Rose v. Burgess, 10 Leigh 198.

*

Tlie edition referred to is Ingraham’s, Boston, 1828. — Note in Original Edition.

CARR, J.

The exceptions taken to the opinions of the court given at the trial, present the only points for the consideration of this court. The ingenuity of counsel, indeed, suggested several others; but we are compelled by the settled law of the court to say, that they do not arise upon this record. The distinction between a bill of exceptions and a demurrer to evidence, has been so often taken by this court, that it would be a waste of time to repeat it, and most mischievous to depart from it. This distinction clearly excludes from our view, the question made upon the act of limitations, Whether the five years of possession ought to run from the sale of the slave by Mrs. Keeling, or from her death? It is not upon the record, and non constat what was the evidence. Neither can we, sitting in a court of law, take cognizance of the equitable rights of the children of Mrs. Keeling: that consideration is for another forum. Nor, as it seems to me, does it come fairly before us-, on this record, to decide, whether a trustee can bring trover for a slave? Or, whether his damages should be for the full value, or nominal merely? The plaintiff sues, not as trustee, but as owner of the slave; the jury has found a general verdict; and the evidence is not before us. True, in a bill of exceptions, taken by the defendant, to a refusal of the court to instruct the jury (not that a trustee could not maintain trover for a slave, but “that unless a demand, and refusal 'x'was proved, the verdict must be for the defendant,”) there is a statement of some evidence, and among other things, a deed of trust, which, it is said, conveyed the slave to the plaintiff; but what other evidence might have been before the jury, it is impossible to say.

If, however, these questions were properly raised, I should feel no hesitation in saying, that a court of law looks only to the legal title, and that being in the trustee, he may assert it, by any action which is given to the legal owner of property: nor can a court of law limit his recovery to nominal damages.

As to the instructions of the court, they seem to me intirely correct. Demand and refusal, is only evidence of conversion, and therefore not necessary under the facts of *40this case, where a conversion is proved by other evidence. In like manner, the defendant was liable to the action, though he received the slave as administrator, sold him as administrator, and disbursed the money as administrator, without the least notice of the defect of his intestate’s title. The right of the owner to sue for his 'slave, can never depend on such circumstances as these. The administrator, when he sells property as belonging to his intestate, acts at his peril. If he sells my propert3r, he must answer to me for it, however he may have thought himself bound by law to sell, and however fairly he may have applied the proceeds to the debts of his intestate.

The court was also right in rejecting the evidence offered by the defendant. What had the inventory, appraisement and settlement of his administration account, to do with the claim of the plaintiff ? They were wholly irrelevant to the question, whether the slave was the property of the plaintiff or not.

J think the judgment must be affirmed.

GREEN and CABEEE, J., and BROOKE, president, declared their intire concurrence with the opinion of JUDGE CARR; but

*COALTER, J.,

said he was not prepared to say, as a general proposition, that, where a testator or intestate has fairly purchásed property, a horse for instance, from one who turns out afterwards not to be the true owner, and dies possessed of such property, having for a considerable time used it as his own, and it comes to the possession of his executor or administrator after his death, and he, without any notice or demand from the true owner, sells the horse, with the other perishable estate, and fully administers the whole personal fund, if in such case, trover be brought against the representative, fora conversion by him as an individual, the action can be sustained, so as to throw the loss on him.

He added: I understand the law to be, that if a defendant come to possession of a chattel by finding, or in other lawful way, it is necessary for the plaintiff tp prove a refusal to deliver, unless the defendant shall' have unlawfully intermeddled with the goods. If they be lost or taken from him, he is not guilty of a conversion, because he has not disposed of them as if they were his own.

Does the executor or administrator, as an individual, unlawfully intermeddle with the goods, in the case put ? Can he be said to have converted them to his own use ? Is it an answer to this to say, that he has converted them to the use of the estate ? It will, no doubt, be a conversion in the testa.tor or intestate, in the case put, for which, under the act of assembly, trover will lie against the executor or administrator, and may be a conversion by him as executor or administrator, and for which trover may lie against him as such, so as to charge the estate for the value; or an action for money had and received by the executor or administrator as such, so as to charge the estate; but the question is, whether, under our system of laws, in relation to executors and administrators, and especially since the party is not without his just remedy under the act giving trover against executors or administrators as well as for them, he can be charged individually, as for a conversion to his own use, unless demand and refusal, before he has sold, be proved? When the *goods come to the hands of the executor or administrator, the regular remedy is replevin or detinue for them. I Wm’s. Saund. 216, a., note 1. The law makes it his duty to sell: he cannot resist the claims of creditors: he cannot demand, as to them, that the personal estate shall remain five years in his possession, so as to put to rest all demands of this kind: he cannot resort back to creditors, since he cannot shew who has received the money arising from any particular chattel. Suppose he departs from the directions of the law as to selling, leaves the property to answer executions, and points out to the sheriff what has come to his hands, and he levies and amongst other things takes the horse in dispute and sells him, no notice being given; is this a conversion by him individually? Yet this would be a conversion in the finder of goods, for they would go to his use; he would have disposed of them as his own.

If A. deliver goods, which afterwards turn out to be the property of B. to C. to deliver to D. and C. does so deliver them, having no notice that they are the property of B. is he guilty of a conversion of them to his "own use?

The most analogous case which I can find to the supposed one now under consideration, is that in which I understand it to have been settled, that if a sheriff levy an execution on the goods of a bankrupt, and sell them after the act of bankruptcy, but before commission and assignment, he is not liable in trover, though the goods ceased to be the goods of the bankrupt, from the moment of the act of bankruptcy. But the plaintiff, at whose suit they were seized, is liable to the action? for though equally ignorant, they came thus to his use. Before assignment, the sheriff is presumed^ to be ignorant of the act of bankruptcy," and is acting in obedience to the writ, (how it would be if express knowledge of it was proved, is another question) : but after commission and assignment, which is public and notorious to all the country, he can no longer plead ignorance, and acts at his own peril.

Our^egislature, by various statutes, has shewn a disposition to protect executors and administrators, who are honestly *doing their duty, against individual loss. If a party does not know his own rights, why shall an executor or administrator of the adverse claimant, be presumed to know them? If from any cause, he be unable to make his rights known, even by a demand in pais, why shall his misfortune, if he lose his property, be visited on one equally innocent with himself?

But the present case is not considered as presenting the broad proposition laid down in the case above supposed. It presents the case of a slave conveyed in trust by a deed duly recorded (there being no objection to the deed, as not being duly recorded) and there is consequently implied notice, at *41least, that the title was not in the intestate. This is not a case oí demurrer to evidence; and we know not what was proved.

All I mean to say in this case, is, that, as I am at present advised, I am not prepared to affirm the broad doctrines, which have been contended for; nor am I intirely prepared to disaffirm them. I wish the point, as it really is not involved in this case, not to be considered as settled by it.