
    Huddleston’s adm’r. vs. Currin.
    A trustee holding title to personal property, but not having the possession, that being left with vendor by verbal agreement, is not guilty of a conversion in refusing to relinquish his title to the property.
    This action of trover was brought in the Circuit Court of Williamson, by Huddleston, a constable, against Currin, a trustee. Huddleston, a constable, levied on a horse, the property of one Bateman, by Ji.fa. and the horse was sent off to Williamson county, and was there levied on by fi.fa. at the instance of other creditors of Bateman, sold, and purchased by Charter. Charier conveyed the horse by deed of trust to Currin, as trustee for the benefit of his creditors. This deed recited that he “bargained, sold and delivered” the horse to Currin in trust for the benefit of his creditors. It authorized the trustee to sell the horse after the expiration of twelve months, if the debts were not paid, but was silent as to the possession in the mean time. The horse, by verbal agreement of the parties, did not go into the possession of Currin, but remained with Charter. Hud-dleston demanded a surrender of the title of the horse of Cur-rin, which Currin refused. The case was submitted on plea of not guilty, to a jury, Maney, Judge, presiding.
    Ho charged the jury, that a constable by-levy acquired a right to personal property which would authorize an action; that the deed from Charter to Currin was not such as necessarily made Currin liable to this action of the plaintiff; that the possession of the goods by Charter for twelve months previous to the day on which Currin was authorized to sell was quite as consistent with the deed as the possession of Currin; and that if it was understood between them that Charter should retain possession for the twelve months, and he did retain the possession, the bare refusal of Currin within that time to relinquish his claim to the property under the deed of trust, would not be a conversion upon which the action of trover could be sustained.
    The jury rendered a verdict in"favor of the defendant, from which the plaintiff’s administrator (the plaintiff having died and the suit being renewed by his administrator) appealed.
    
      
      Alexander, for plaintiff in error.
    Huddleston claimed the right to the horse in this suit by virtue of the special property vested in him by said levy, and by law he had such a special property, in him as would authorize him to maintain this suit. Baker vs. Miller, 6 John. R. 195; 12 Johns. R. 407; 10 Wen. R. Overton vs..Perkins,-10 Yer.-329. • -.
    Charter.. and .Currin stating iii the-deed, that Charter that day bargained, sold and delivered the horse to Currin, estops Currin'from'denying that fact. '2 Stark. 302; Henderson vs. 0-verton,2 Yer. R. 396; - _ ■ ■ _-
    ■The defendant-having taken ..the. .deed of .trust conveying the property absolutely From Charter to himself for the twelve rnonths next after the date of the deed, and refusing to deliver the property on demand.of. the plaintiff’s agent, was an absolute conversion; and the plaintiff had the right to have the law charged in that way without the conditions stated in the charge. 2 Leigh’s ÍÁSÍ-, McGombie vs; Davis, 6 East.'R:- 538; Reynolds vs. Shuler, 5 Cow. R. 323, 326, 326;- Comah vs. Hale, 23 Wend. R. 462, 466,467. '' .
    The possession of Charter was only as agent or tenant at will of Currin,' who had the immediate right to possession. 7 Yer. R. 444-5. But even if Currin- had parted with the property before demand made by , the plaintiff, he would be liable in this suit. Hadley vs. Rowan, 5 Yer. R. 301.
    
      Foster, for the defendant in error.
   Reese, J.

.delivered the opinion of the court.

This is- an action of trover to. recover the value .of a horse, alledged to have been converted by defendant. The horse was not, and had never been in the actual possession of defendant: he was included among other property in a deed of trust, made by one Charter to defendant as trustee, to secure the debts of third persons, and the trustee was empowered, after the lapse of twelve months, to sell the property. This suit was brought within the twelve months; and the only'evidence of conversion is, that Currin being asked by plaintiff if the horse was in the deed of trust, said be did not know; arid being inquired of, whether, if so included, he would riot surrender all claim to the horse, he replied that he would not. The court charged the jury, that during the .twelve months previous to the time limited in the deed of trust for the sale of the property, the possession .of Charter was consistent with the title of Currin; and if by the understanding of the parties,-the property during the. twelve months was to remain in the possession of Charter, and did so remain, then the mere refusal of Currin, the trustee, to surrender his claim by virtue of the deed of trust, would not amount to an act of conversion in him..

We are unable to perceive any error in this charge of the court. If the deed of. trust be.silent on the subject of possession — if the trustee has no present power to' sell, and if the understanding or agreement were that the grantor should retain possession of the. .property till the sale — the trustee does no ' wrongful act, is-guilty-of no-conversion, when he simply refuses to relinquish the title to the property.

Let the judgment be affirmed.  