{ "id": 5250247, "name": "Edwin C. Langhenry, Successor in Trust, etc., v. Chicago Trust and Savings Bank et. al.", "name_abbreviation": "Langhenry v. Chicago Trust & Savings Bank", "decision_date": "1897-05-24", "docket_number": "", "first_page": "200", "last_page": "205", "citations": [ { "type": "official", "cite": "70 Ill. App. 200" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "157 Ill. 554", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3141787 ], "opinion_index": -1, "case_paths": [ "/ill/157/0554-01" ] }, { "cite": "125 Ill. 626", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2938144 ], "opinion_index": -1, "case_paths": [ "/ill/125/0626-01" ] }, { "cite": "82 Ill. 409", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5315075 ], "opinion_index": -1, "case_paths": [ "/ill/82/0409-01" ] }, { "cite": "82 Ill. 152", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5314388 ], "opinion_index": -1, "case_paths": [ "/ill/82/0152-01" ] }, { "cite": "82 Ill. 125", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5313798 ], "pin_cites": [ { "page": "126-128" } ], "opinion_index": -1, "case_paths": [ "/ill/82/0125-01" ] }, { "cite": "31 Ill. 120", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 8499956 ], "pin_cites": [ { "page": "129" } ], "opinion_index": -1, "case_paths": [ "/ill/31/0120-01" ] }, { "cite": "6 Blackf. 209", "category": "reporters:state", "reporter": "Blackf.", "case_ids": [ 6107682 ], "opinion_index": -1, "case_paths": [ "/blackf/6/0222-01" ] }, { "cite": "31 Ill. 120", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 8499956 ], "opinion_index": 0, "case_paths": [ "/ill/31/0120-01" ] } ], "analysis": { "cardinality": 500, "char_count": 10173, "ocr_confidence": 0.551, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.15690972716942184 }, "sha256": "c787370de158f934c52546ac6bac3f7be157354a0c7924ba3c773ddec575782d", "simhash": "1:5bbf830954c08653", "word_count": 1785 }, "last_updated": "2023-07-14T18:32:17.018382+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Edwin C. Langhenry, Successor in Trust, etc., v. Chicago Trust and Savings Bank et. al." ], "opinions": [ { "text": "Mr. Presiding Justice Shepard\ndelivered the opinion of the Court.\nThis wq,s an action of trover, brought by appellant as successor in trust, etc., to recover $7,495.75, being the value of certain notes which were deposited with the appellees by one Benjamin F. Clarke, as collateral security to his individual note for money borrowed.\nAbout April 1, 1890, sixteen persons, including the appellant, constituting what is popularly called a syndicate, bought sixty-four lots in Block \u201c S \u201d in Morgan Park, and on that day entered into a written agreement between themselves and said Benjamin F. Clarke whereby Clarke was constituted trustee, and the appellant successor in trust, to take the title to said premises as trustees for the others, and sell the same when directed, and pay over to each party his proportion of the proceeds of sale according to his specified interest.\nThe land that was bought was conveyed to \u201c Benjamin F. Clarke, trustee, as aforesaid, then to Edwin C. Langhenry, who shall be successor in trust.\u201d\nAt least some of the lots were sold, and notes secured by trust deeds were received by Clarke in part payment.\nIt seems to have been sufficiently established that all of the notes in question were received by Clarke in his capacity as trustee under said agreement, and were pledged, or deposited as collateral security by him, to secure an individual indebtedness of his own to the appellees, without the consent or knowledge of any of the members of the syndicate, and without any benefit therefrom to them or any of them.\nAfterward, Clarke formally renounced his trusteeship in favor of appellant as successor in trust. Thereupon demand upon appellees for the notes was made, which being refused, this action in trover was begun.\nWe need not discuss whether appellees had notice of the character in which Clarke held the notes, for it is clear that appellant could not maintain trover for them.\nIf, at the time the pledge was made, appellees took the notes without notice of Clarke\u2019s trusteeship concerning them, the possession of them then taken by appellees was rightful and subsequent notice would not make it wrongful; and if they were taken with notice, then their possession was wrongful and conversion instantly followed.\nIn neither case could appellant maintain trover.\nTrover is a possessory action, and to recover the plaintiff must show he has a special or general property in the thing converted and the right to its possession, and he must recover, if at all, on the strength of his own title, without regard to the weakness of that of his adversary. Davidson v. Waldron, 31 Ill. 120.\nThe notes were never in the possession of appellant, and he never saw them. He was only to become successor to Clarke in the trusteeship after Clarke ceased to be trustee, and that did not happen, nor did appellant assume to act as trustee until several weeks after the notes were pledged and their alleged conversion had taken place.\nThe refusal to surrender the notes upon demand by appellant did not make the conversion occur as of that date if appellees\u2019 taking of them from Clarke was wrongful, for in such case the conversion was identical with the act of taking; nor did such demand and refusal change a taking, rightful at first, into a wrongful act as of the date of demand.\nAt the utmost, appellant never had more than a special property in the notes, and to support an action of trover by one having either a general or special property in the thing he must prove a conversion thereof at a time when the right of possession existed in him.\nIt is essential that the plaintiff should have, at the time of the conversion, not only the right of property in the chattel or thing, but also the right to its immediate possession. It is not enough that he has a mere right of action, or a right to take possession at some future day. Puterbaugh\u2019s Pl. and Pr. (7th Ed.) 290, and cases there cited.\n\u201c So a person having a special property in the goods may support trover against a stranger who takes them out of his actual possession.\u201d 1 Chitty on Pleading, star page 151.\nIf a plaintiff \u201c has only a special property, there must ordinarily be evidence of actual possession.\u201d 2 Greenleaf on Evid. (13th Ed.), Sec. 640.\nWhether trover might be maintained by Clarke is a question- not in this record, although it would seem that it might not be, because of his own wrongful act in pledging the notes. And as to the action being maintainable in the names of the members of the syndicate, it would seem that it would not be because of their lack of right to possession of them.\nThere may be a remedy in equity, although difficulty therein may easily be seen, but we are not called upon to advise, and do not intend to express an opinion except that the appellant may not maintain the action. The judgment of the Circuit Court is accordingly affirmed.\nMr. Justice Gary.\nI concur in the result for reasons shortly stated thus:\nThe deed, under which the appellant is successor to Clarke as trustee, provides only that the appellant shall be such successor \u201cin case of the death or other legal disability of\u201d Clarke; and neither insolvency, nor abuse of the powers conferred, is a legal disability, though either may furnish ground for removal.\nTherefore, under the deed, it can not be said that the appellant has title to the land even, much less to the notes, concerning which the deed contains no provision.\nThe same reason applies to an agreement made by the members of the syndicate among themselves, contemporaneous with the deed, except that in the agreement there is a provision that the trustee shall \u201c pay over to each party on sale of said property, their proportion of all proceeds of all sales and profits as fast as the property is sold. That was a duty incumbent upon Clarke, which, as to the notes in controversy, never charged the appellant.\nMow, waiving the question whether Clarke could confer-upon the appellant any authority to revoke or repudiate wrongful acts done by Clarke, it is clear that he never tried so to do. The deed by which Clark renounced, conveys \u201c all his right, title and interest in and to \u201d the land there described, and closes with the statement: \u201c It being the intention of the said Benj. F. Clarke to renounce the said-trusteeship, and to sell, convey and' assign to Edwin C. Langhenry, his successor in trust, the legal title to said property above described.\u201d\nSo the notes have never been the subject of any source of title to the appellant.\nWhether the property in chattels and choses in action, adversely held, may be transferred by one who has been wronged to an extent that entitles him to maintain trover (for which there seems to be authority\u2014Benjamin on Sales, 39)\u2014and what the transferee may do thereafter, need not be discussed. The judgment appealed from is right, and whether it be so for the right reason, is immaterial.\nMr. Justice Waterman.\nThere is no pretense that appellee took these notes to hold in trust for Mr. Clarke or any one else. It is undisputed that it purchased them for its own use and purpose. If, therefore, there -was a conversion by appellee, it took place when it so obtained the notes. Mr. Clarke was the legal holder to these notes, they having been received by him on account of the sale of certain property which he held in trust for the estate of P. P. Pluml\u00e9y and others; the trusteeship of said Clarke as to the notes, being his undertaking to pay to each of the cestuis que trust. on sale of said real estate, their proportion of all proceeds of all sales and profits as fast as the property should be sold.\nClarke, it would seem, in bad faith converted these notes, or their proceeds, to his own use. When appellee purchased and took possession of these notes\u2014that is, if at all, converted them\u2014appellant had no right to maintain an action of trover for them.\nWhatever right appellant has to these notes or their proceeds, accrued long after appellee obtained the notes for its own, use.\nThere was, as the Circuit Court found, no sufficient evidence warranting the submission to the jury of the question of whether appellee received these notes in bad faith, so as to make it liable to respond for their value to the legal owner of the same.\nI am of the opinion that, for the reasons above stated, the judgment of the Circuit Court should be affirmed.", "type": "majority", "author": "Mr. Presiding Justice Shepard Mr. Justice Gary. Mr. Justice Waterman." } ], "attorneys": [ "MoGlasson & Beitler and J ames B. Ward, attorneys for appellant.", "Cratty Bros., Jarvis & Cleveland, attorneys for appellees." ], "corrections": "", "head_matter": "Edwin C. Langhenry, Successor in Trust, etc., v. Chicago Trust and Savings Bank et. al.\n1. Trover\u2014Character of the Action\u2014Showing Necessary to Maintain.\u2014Trover is a possessory action, and to recover the plaintiff must show that he has a special or general property in the thing converted and the right to its possession, and he must recover, if at all, on the strength of his own title, without regard to the weakness of that of his adversary.\n2. Same\u2014Proof Necessary to Support.\u2014To support an action of trover by one having either a general or special property he must prove a conversion'thereof at a time when the right of possession existed in him. It is not enough that he has a mere right of action or a right to take possession at a future day.\nTrover, for the value of certain promissory notes. Appeal from the Circuit Court of Cook County: the Hon. Thomas G. Windes, Judge, presiding.\nHeard in this court at the March term, 1897.\nAffirmed.\nOpinion filed May 24, 1897.\nMoGlasson & Beitler and J ames B. Ward, attorneys for appellant.\nCratty Bros., Jarvis & Cleveland, attorneys for appellees.\nIn order to support an action of trover the plaintiff must show that at the same time of the conversion he had a property in the chattels, either general or special. He must also have had, at the time of the conversion, the actual possession or the right to immediate possession of the- property. 1 Chitty on Pleadings, *147, *150; 2 Greenleaf on Ev., 14th Ed., Secs. 636-640; Puterbaugh\u2019s Common Law (1897), 290-295, 296; Barton v. Dunning, 6 Blackf. 209; Davidson v. Waldron, 31 Ill. 120, 129; Pressley v. Powers, 82 Ill. 125,126-128; Forth v. Pursley, 82 Ill. 152; Owens v. Weedmann, 82 Ill. 409; Honrood v. Smith, 2 T. R. 353; Hayes v. Ins. Co., 125 Ill. 626-633; Stock Yards Co. v. Mallory, 157 Ill. 554-560." }, "file_name": "0200-01", "first_page_order": 200, "last_page_order": 205 }