
    Fred. Keefer, App’lt, v. Lewis Greene, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November 30, 1891.)
    
    1. Conversion—Demand.
    A demand and refusal are not a condition precedent to an action for conversion where the defendant did not come into possession lawfully.
    2. Chattel mortgage—Conversion.
    S. and wife gave to plaintiff a chattel mortgage on hives of bees belonging to the wife to secure his guaranty of a note which he was afterward obliged to pay. The mortgagor placed the hives in the field of one B. a^d moved away. Defendant took possession of the same, claiming to do so under a bill of sale from the wife of S. Held, that the mortgage and default gave title to plaintiff, which he did not lose because of the mortgagor’s removal; that no demand was necessary before suing for conversion, and that a nonsuit was improperly granted.
    Appeal from judgment entered on nonsuit on a new trial had in county court.
    
      Barlow & Greene (D. Cady Herrick, of counsel), for app’lt; William R. Tanner, for resp’t.
   Learned, P. J.

This action was commenced in a justice’s court. The plaintiff recovered. An appeal was taken to the county court, where the action was re-tried. A nonsuit was granted and the plaintiff appeals.

The action was for the alleged wrongful conversion of a number of hives, or skips, of bees, claimed by plaintiff to belong to him and to the possession of which he claimed to be entitled.

Aaron Snyder and wife in May, 1888, mortgaged to plaintiff twenty-five hives of bees, claimed to belong to her, to secure him ■against his guaranty of a note of $200 made by the mortgagor, •dated May 19, 1888, payable in six months. The mortgagor did not pay the note. Plaintiff did in May, 1889.

In the spring of 1889 Snyder took the hives from the place where they had been stored in the winter and put them in a lot belonging to Blodgett. Defendant came and took them away, or some of them. Defendant seems to have claimed them under a certain bill of sale executed to him by Rachel Snyder, wife of Aaron, in April, 1887.

There was a good deal of evidence in the case on the question whether the bees which defendant took were those sold to him or those mortgaged to plaintiff. And the plaintiff requested to go to the jury on the question of ownership and other questions.

The court nonsuited on the ground that at the time of the taking the plaintiff was not in possession and that the property was not in possession of the mortgagors, they having moved away; that defendant took under claim of title and that there had been no demand for the property by the plaintiff.

The mortgage contains the usual clause that upon default or if he choose to demand the goods the mortgagee may take possession and sell the goods, and that while the goods remain in the possession of the mortgagor such possession shall be that of an agent of the mortgagee.

The mortgage had become due. The mortgagee was entitled to possession and the mortgagor had no leviable interest. Leadbetter v. Leadbetter, 125 N. Y., 290; 34 St. Rep., 929; Manchester v. Tibbetts, 121 N. Y., 219; 30 St. Rep., 721; Burdick v. McVanner, 2 Den., 170.

The defendant took the property and converted it to his use. He did not come into possession lawfully. A demand and refusal are necessary where the defendant has come into the possession of the property lawfully. For in that case he cannot be shown to have converted the property to his own use until he has refused to surrender it.

If the bees were originally the property of Eachel Snyder then the mortgage and the default gave title to plaintiff. And he did not lose title because, as is said, the mortgagor had moved away from their house. The property was his in Blodgett’s field as much as it would have been elsewhere. This is not a case of property lost by the owner and found by some person. In that case it may be said that the finder comes into possession lawfully. But the defendant knew that these were Snyder’s bees. He claimed that they were such as had been sold to him. Whether he was right in that or not should have been decided by the jury.

Judgment reversed, new trial granted, costs to abide event

Landon and Mayham, JJ., concur.  