{
  "id": 11276350,
  "name": "Burton W. Dowd v. Flora Wadsworth",
  "name_abbreviation": "Dowd v. Wadsworth",
  "decision_date": "1829-06",
  "docket_number": "",
  "first_page": "130",
  "last_page": "135",
  "citations": [
    {
      "type": "nominative",
      "cite": "2 Dev. 130"
    },
    {
      "type": "official",
      "cite": "13 N.C. 130"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [],
  "analysis": {
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  "last_updated": "2023-07-14T18:28:37.349944+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Burton W. Dowd v. Flora Wadsworth."
    ],
    "opinions": [
      {
        "text": "Henderson, Chief-Justice.\nI am sonu ivhat at a loss to say what this Court, as a revising Court, should do , . .... \u2018 , . as to the error in bringing the suit. No doubt it was intended to he the infant\u2019s suit \u2014 it was so considered throughout. The trial was upon the infant\u2019s title, yet it is the suit of the guardian \u2014 it is brought by him in his own name \u2014 for although he describes himself as guardian of the infant, that is but matter of description, and does not make it the suit of the infant. The Court below, \u00cd think, should have rejected the whole of the evidence, as irrelevant $ for it did not tend to establish title in the Plaintiff, but in his ward. I do not know what else we can do, hut to grant a new trial. The Superior Court may, under our act for the amendment of the law7, and particularly under our construction of that act, permit an amendment upon terms, if it should he thought proper. '\nThe Counsel for the Defendant made a very ingenious argument, to show7 that there was no conversion ; but lie has not satisfied rne that there was none. It is evident the Defendant claimed a life estate in the horse, under the will of her husband, to which she was entitled, if there was no valid gift to the infant.\nThe executor left the horse with the other property on the plantation, where the widow continued to reside, and she no doubt exercised acts of control and ownership over it \u2014 for it appears that she lent him to one of (he witnesses to go to Fayetteville, and once to another person to go a short journey. That when demanded, she said the horse was not there that he was in the possession of the agent of the executor, who lived three or four miles off. She said she would do nothing until she could see the executor, and that she did not know that she would give up the horse at any rate. This is very unlike the conduct of tlie possessor of a chattel, who, not knowing the owner, claims no property in it, but is willing to give it up, so that he is exonerated. On the contrary, it is very muck like a claim, especially when coupled with her acts of ownership and her concluding\u2019remark, that she did not know that, she should give him up at any rate, which seems like disclaiming the authority of the executor. All this looks much like a claim for herself, and when coupled with her interest under the will, shows that she held adversely.\nThe general rule is, that any person who is in the possession of another\u2019s property is bound to surrender it upon demand. The exceptions are, where a person really and bona fide does not know that the applicant is the owner. By which, I do not mean that he cannot judge whether his title is good or bad, as it were, upon the law or intricate facts of the case \u2014 as if a man finds property, before the finder can be put in the wrong, there must he some grounds to believe that the applicant is tho owner ; not full proof, but something that would satisfy a reasonable man. JgjMfjyjp neighbor bails property to another, if it is demanded of the DaI\u00edeeT\"and he, thinking it is the bailor\u2019s, requests a delay until he can see the bailor and return it to him, this will not be evidence of a conversion/All these exceptions are founded in good sense, and it must appear on the transaction that the bailee neither claims possession for himself, nor even for his bailor, but only that he wished a delay to enable him to return it to the bailor, that the latter might exercise his free will, and not condemn the bailee for not doing so, and that the bailee might thus avoid a lawsuit. If this Defendant held for the executor, it appears her motives were different from these. I rather suppose she considered that he held title for her, and that she held possession for herself \u2014 that she was mistress, and could direct and act as she pleased; for it seems that when matters came to an extremity, she would follow her own, and not his will. When one is in possession under a bailment, by holding for the bailor, and refusing to deliver the thing hailed upon demand, he identifies his possession with the title of the bailor $ and if that ir \u2019 ad, the possession is a \u2019tivcrsi.sand he be-romes sonally chargeable. ;uink \u2022 erefore the Judge was right in the instructions given, and in the manner in which he left the case to the Jury.\nAs to the demand made by a person who does not show that lie was guardian, or authorised to make it, I perfectly concur with the Counsel, that the Defendant might well refuse to deliver up the horse on such a demand \\ but this should have been done on that ground, and not on the claim of right on her part: it is the claim of right which gives to her possession an adverse character.\nI think the Defendant has no pretence to shelter herself under the bailment from the executor. For she identified herself with him, and if his title is bad, her possession is wrongful. But the judgment must be reversed, and a new trial granted for the cause first mentioned.\nPer Curiam. \u2014 Let the judgment below be reversed, and a new trial granted.",
        "type": "majority",
        "author": "Henderson, Chief-Justice."
      }
    ],
    "attorneys": [
      "Muffin, for the Defendant,",
      "No Counsel appeared for the Plaintiff."
    ],
    "corrections": "",
    "head_matter": "Burton W. Dowd v. Flora Wadsworth.\nFrom Moore.\nWhere a writ was to answet \u201c A, guardian of R,\u201d the words \u201c guardian of D,\u201d was held to be but matter of description, and the suit to be the suit of A, not of the ward ; evidence of the ward\u2019s title is therefore irrelevant.\nPossession accompanied with a claim of title, is a conversion. But a mere bailee who eh\u00falts no title \u25a0 'tner ror i\u00f1mself or his bailor, and upon a demand o- noss.-sf , :.>,ks tune to surrender the property to his bailor, is not guilty of a conversion.\nOne who is in possession of the property of another, is bound to surrender it upon the demand of the owner ; hut if he does not know the applicant to be the owner, he has a right to reasonable proof of that fact.\nPrinciples of law in r--spent to what constitutes a conversion, discussed by Uta'nuiisox, Chief-Justice.\nTrover for a horse, brought by the Plaintiff in his own name, \u201cas guardian of Daniel Blue\u201d\nThe cause was fried on the plea of not gully, before his honor Judge Danied, on the last circuit.-\nThe Plaintiff proved a gift of the horse to his ward Daniel Blue, by his gr&ndhtiher John Wadsworth, the late husband of the Defendant, and that he had by his will, bequeathed all his personal 'state to the Defendant during' her life. The executor o. John h a Isivovth lived at a distance from the Defendant, and in another county. All the property of the estate, together with the horse in dispute, was left by him on the plantation where the testator died, where aiso the Defendant continued to reside\u2014 she contending, that the horse had never been given to Blue, by the testator; but that it continued to be part of his estate, it was in proof, that after the death of her husband, the Defendant used the horse about the plantation \u2014 that she lent it to one of the witnesses to go to Fayetteville, and also to another person to go a short journey.\nJune, 1829.\nThe Plaintiff demanded the horse of the Defendant for his ward} she answered that it. was not in her possession, but in that of the agent of the executor, who lived some miles off \u2014 that she should do nothing until she saw the executor, and that she did uoi know that she would give it up at any rate. There was no proof of the Plaintiff\u2019s appointment as guardian.\nHis Honor instructed the Jury, that if they were satisfied that tiie Plaintiff had title to the property, their next enquiry should be the fact of a conversion by the Defendant. That on this point, if was not necessary for the Plaintiff to prove a demand by him, and a refusal by the Defendant, when the horse was in her possession, that it was sufficient if he proved to their satisfaction, that the Defendant had, since the death of her husband, exercised acts of ownership over it inconsistent with his title.\nUnder this charge, a verdict was returned for the Plaintiff, and the Defendant appealed.\nMuffin, for the Defendant,\nobjected 1st, that the writ was to answer i( Burton IV. Dowd, guardian of Daniel Blue,\u201d which made Dowd the Plaintiff, when the property was shown to be in Blue, his ward.\n2d. That there was no conversion by the Defendant. Blue being an infant, the property coming to the possession of the Defendant by leave of the executor of the donor, and there being no proof that the Plaintiff had been regularly appointed bis guardian, the Defendant had as good a right to retain the custody of the property, as the Plaintiff had to demand it.\nHe contended, that where property comes to the possession of any one, by finding or by a bailment, a demand must be made by one having an authority to make it, in order to prove a conversion.\nThat the actual possession of the horse by another, when the demand was made, and the qualified terms in which the Defendant spoke, showed there was no conversion. It only disclosed her inability to deliver it up, and her want of authority, but asserted no right of property in herself.\nThat Blue being an infant, the Defendant had a right to a reasonable use of the horse for the keeping of it, and that the. very fact of a delivery to any, but one who was a regular guardian, would have been such a disposition of the property as amounted to a conversion \u2014 that no misuser was proved, which he admitted would have been a conversion. In support of these principles, he referred to Bull.N. P. 44, and the opinion of Coke, Chief-Justice, in 2 Bulst. 312, cited 3 Selw. JV*. P. 1151.\nlie contended, that it was plain on the whole case, that the Defendant set up no right of property in herself, that she used the horse by permission of the executor, between whom and Blue, she did not intend to interfere. That she got the horse from the executor and returned it to him \u2014 that she exercised no acts of ownership inconsistent with the rights of Blue, but the horse being in her possession, she merely refused to decide between the right of the infant and the executor.\nNo Counsel appeared for the Plaintiff."
  },
  "file_name": "0130-01",
  "first_page_order": 146,
  "last_page_order": 151
}