#### BARNETT BURNETT vs. WM. H. FULTON.

The principle, that a bailee shall not be heard to deny the title of his bailor before surrendering the possession, does not apply where the bailee sets up a- deed in trust made for his benefit after the bailment.

*487Action of trover, tried before his Honor, Judge Ellis, at the Special Term, (June, 1856,) of Henderson Superior Court.

Plaintiff declared for the conversion of a wagon. One Cook had formerly owned it; he loaned it to Eulton, the defendant, who was to use it and return it in as good plight as it was in when he received it. Cook sold the wagon to plaintiff, who demanded it of the defendant, showing him authorito from Cook to demand and receive it. The defendant refused to deliver it, upon the ground, that he had a mortgage on it for the payment of a debt which Cook owed one Jones, and in which he was interested. A deed in trust for this property, to one Davenport as trustee to secure said debt, executed by Cook, after the bailment, and before the sale to the plaintiff, was produced in evidence by the defendant. Davenport testified that Cook had delivered him the deed in trust, but that he had done nothing under it, but left the wagon in the defendant’s possession as formerly.

His Honor left it to>the jury to say whether there was a bailment of the property in question to the defendant by Cook the vendor of the plaintiff; and instructed them, that if they should so find, the defendant could not be heard to dispute the title of his bailor, nor of one claiming under him, until the possession should have been surrendered to him. Defendant excepted.

Verdict for plaintiff. Judgment. Appeal by defendant,

Baxter, for plaintiff.

N. W. ~Wood¡fm and J. W. Woodfin, for defendant,

Nash, C. J.

It is a well-established principle that a bailee cannot, while the bailment still subsists, deny the title of his bailor or of any one claiming under him. This principle was, however, improperly applied in this case. The defendant did not deny the right of Cook, his bailor, but in fact affirmed it. When applied to by the plaintiff for the wagon to whom Cook had sold it, he refused to deliver it to him, because Cook, before he sold it to the plaintiff, had mortgaged it to one Da*488venport to secure a debt which he owed one Jones, and for the payment of which, we presume, he, the defendant, was bound as surety. In refusing to deliver to the plaintiff for the reason assigned, he was affirming the right of Cook. Davenport had never taken the wagon into his possession, but left it with the defendant, with notice of his claim. A demand and refusal, where an article is bailed, is not a conversion, but simply evidence of it; and the refusal here sufficiently explains the conduct of the defendant and does not make him a wrong-doer.

It is unnecessary to refer to authorities to support these positions. The principle announced by his Honor was perfectly correct, but was misapplied. Both parties claimed under Cook, and the defendant, who held for Davenport the trustee, had the better title.

Pee Curiam.

Judgment reversed, and a mnvre de novo awarded.