Fuller v. Tabor

<p>On EXCEPTIONS from Nisi Prius, Rice, J., presiding.</p> <p>Trover for a wooden building. • CJ</p> <p>The plaintiff introduced evidence tending to show that he sold to Moses B. Brown a shop for a certain sum which was</p> <p>to remain his until paid for. Brown moved it on to a piece of land and fitted it into a dwellinghouse and underpinned it, and lived there until he died. His widow occupied the same when this action was commenced. There was no evidence that it was ever paid for.</p> <p>It appeared that Brown moved it upon land of one Hoxie without his knowledge or consent. After finding the house there, Hoxie notified him the land was his, but Brown said he bought it of Reed, and afterwards agreed with Hoxie to buy the land of him and pay three dollars for it, but died without doing so.</p> <p>It also appeared, that the defendant had a deed of quitclaim of the land where the house stood, from Brown; and that plaintiff demanded the shop and house of defendant, who said he had bought it of Brown and got a deed of it, and should keep it; that Fuller could have a watch for it, but would not take it. About one hundred dollars worth of labor and materials had been added by Brown.</p> <p>There was other evidence tending to show, that defendant had never in fact exercised any actual control over the house.</p> <p>The presiding Judge instructed the jury, that if the building was put on Hoxie’s land by Brown without his knowledge or consent, but when Hoxie was informed that the house was thus put upon his land he consented that it might remain, it would be personal property and this form of action, might be maintained; that the agreement by Hoxie to sell to Brown would not of itself be sufficient evidence of such consent by Hoxie; but that they might determine from the position of the parties, the circumstances of the case, together with the agreement testified to by Hoxie, whether he did give such consent.</p> <p>The defendant requested instructions, “that taking a quitclaim deed of the building without taking possession of the land or house, or exercising any acts of control over it, but leaving it in the possession of Brown, was not a conversion, though there may have been a demand by plaintiff and a refusal by defendant to deliver, and that asserting a claim to the building, merely, without having the possession, is not an act of control over the property.”</p> <p>Which instructions were refused; but the Court instructed the jury that to entitle the plaintiff to recover, he must prove a conversion of the building by the defendant, as alleged in his writ; that conversion consisted in the exercise of dominion and control over property, inconsistent with, and in defiance of the rights of the true owner or party having the right of possession. That taking a quitclaim deed of the land and building and putting it on record would not, of itself, constitute a conversion; but they would look at all the evidence in the case, as well the taking and recording of the deed as the other acts and declarations of the defendant, and from the whole evidence determine whether he had, as matter of fact, converted the property to his own use.</p> <p>The verdict was for plaintiff, and defendant excepted.</p> <p>A motion was also filed to set aside the verdict as against the evidence in the case.</p> <p>The house when placed on Hoxie’s land and underpinned, without his consent, became real property. His consent that it might remain there, if afterwards given, was consistent with his right in it and would not make it personal property.</p> <p>The request should have been complied with. Fernald v. Chase, 31 Maine, 289, and cases there cited; Mattawam Co. v. Bentley & al., 13 Barb. S. C. Ml; Rand v. Sargent, 23 Maine, 326.</p>