
    CONSTITUTIONAL COURT,
    CHARLESTON,
    MAY, 1804.
    Graham v. Penman.
    One intitled to slaves, after the termination of a'life interest in them in another, cannot maintain trover for them, against a party who purchased from the tenant for life, and sold again during the life of the latter : nor will it make any difference, that the slaves were demanded by the remainderman after the death of the tenant for life. The sale during the life time of the tenant for life, was not a conversion of the property of the remainderman ; nor was the failure to deliver upon a demand, made when the property was no longer in possession of the purchaser, a conversion after the remainderman’s right accrued: and even if the purchaser were bound by the covenants of the cestuy que vie, or as trustee for the remainderman, yet trover is not the remedy for breach of covenant, or trust. '
    This was an action of trover, foi- certain slaves, and was tried in Charleston district. The jury found a special verdict, which stated, that the negroes in question we/re included in a settlement made by the plaintiff’s father on her, in 1782, by which the same negroes were limited to the father for life, and after his death were then to go to the plaintiff. That afterwards the said father, many years before his death, sold the same negroes absolutely for a full consideration to the defendant, assuring the defendant that they were free of any incumbrance. The defendant afterwards sold the same negroes to another person, by whom they weve taken and carried into Georgia, where they then were at the time of the trial. That all these events occurred in the lifetime of the plaintiff’s father: and that after his death, viz. in 1^02, and shortly before the commencement of this action, the defendant had notice of the plaintiff’s claim, and the negroes were demanded of him. He answered, that he had them not in his possession or power, and therefore could not deliver them. The verdict also stated, that the deed of settlement was duly recorded in the Secretary of State’s office.
    Pringle, for the plaintiff.
    The father, tenant for life, was trustee for the rem tinder man, the plaintiff, the cestuy que use. He was entitled to tiie use himself for life, but he possessed, and held for the uses mentioned in the deed ; and, upon his death, his representatives were bound to produce the property, if in existence, to the person then intitled to the possession and use thereof. The .defendant could acquire no greater right than the tenant for life had j and, upon the death of the latter, stood in the same place, as his personal representatives would have stood, if the negroes had come into their hands. The defendant was guilty of a wrongful conver. sion by soiling the negroes absolutely, and outright, when he was intitled to hold them only pur auter vie. It was a breach of trust, and therefore, a tort, and conversion in law* The settlement having been recorded, which was noiice to all the world, the defendant is estopped to say that he was ignorant of the plaintiff’s right. His refusal, upon demand, to deliver the negroes to the plaintiff, is good evidence of conversion, it was his own fault that he had not the negroes in his possession, or power,'to comply with the demand; and, he shall not be permitted to take advantage of his own wrong. The covenant in the deed bound the defendant, who is an assignee under it.. He should have taken care that the property should be forthcoming upon the det.th of the tenant for life, or cestuy que vie. His not having done so was crassa negligentia. Cited 6 Bac. Abr, 697, 082, new ed. Trover. Assuming a right to dispose of the whole, when he had only aright to part, is a conversion pro tanto. 2 Esp. Dig. 583. This was a vested remainder in the plaintiff, and coexistent with the life estate. 5 T. R. 175.
    De Satjssurb, contra.
    
    The defendant must be regarded as a bona jide purchaser with notice. A fair purchaser of property, or hold, r of a bill, cannot be made liable, although the original owner has been dispossessed, or oithhoklen from possession, by force, or fraud. Miller v. Race, i Bur. 452. 2 T. R. 750, 756. If this action can be supported against one intermediate holder or purchaser, H may against every one; which would bo vexatious and oppressive. But the defendant has not been guilty of'any conversion. It has been said, lie could acquire no greater estate by the purchase, than the purchaser had. He could dispose of no more; and, there, fore, when he sold, he sold only what he had a right to sell, viz. the life estate. When he sold, the tenant for life was alive; and, therefore, he had a right to sell, for the life estate which he bought still existed.
   By the court.

An action of trover must be founded in the property of the plaintiff, 1 T. R. 56; and the right, of property will draw with it the actual possession. Latch, 214. But, it is necessary, in order to maintain this action, to prove, not only that the plain, tiff had a property, either general or special, in the thing for which the action was brought; but, also, that the defendant was in possession, and converted the properly to his own use. The conver. sion is the gist of the action ; for, it is the conversion that makes* the defendant a wrongdoer, and not the trover, or finding, or being in possession. In this case, it does not appear that the defendant ever wrongfully converted to his own use the property of the plaintiff, It has been contended, that the selling the negroes absolutely, when he had only the use of them for the life of another, was an illegal conversion of the whole right in the property, and consequently, a conversion of the remainder, or residue, or contingent right, vested in the plaintiff; which was a wrongful conversion pro tanto. But there is no doctrine of law to maintain this position. The right of the plaintiff was a mere possibility. The negroes might all have died before the tenant for life. The tenant for life could dispose of no more than his life estate; and the subsequent purchasers from him, and claiming under him, could obtain no greater estate, or right, than he could dispose of. He had a right to dispose of his life estafe; and the person who purchased his right, could lawfully dispose of it. The possession of the negroes followed these several transfers as a matter of course : and therefore, during the life of the tenant for life, or of him to whom the property was limited for life, there could be no conversion to the prejudice of the plaintiff. If the negroes had been put to death, or improperly deteriorated, by the person* intitled to the use of them for life, or by another, trover would not be the proper remedy for the person intitled to them after the death of the cestui que vie: for he had no property in them at the time, and therefore, no right of action coilld accrue to him. The right to maintain this action, ne'cessarily involves the right of possession, as well as the right of property ; but, the right of property draws with it the possession. In this Case, it cannot be pretended that the plaintiff, at the time of this supposed conversion, was intitled to the possession of the negroes in question. The right of property and possession was hot then Violated by the sale made by the defendant.

But it has been further contended, that after the death of the cestuy que vie, it was the duty of the defendant to have delivered up the ne■groes upon demand: and that a refusal, or failure, by him to deliver upon demand, he being legally bound to deliver, amounts to a conversion, bj construction and operation of FlW. This position is equally untenable. At the time when the plaintiff became intitled to the property, the negroes were not id, the possession, or subject to the control, of the defendant. Á. milting that he was bound by the; Covenants of the cestuy que, vie, fr.,m whom he bought, or as trustee for the remainder.;.y.u, ii does not follow that he is liable in oe fen action of trover for a breach of covenant, or trugt.. The dofendant has not been guilty of any malfeasance in relation to the plaintiff^ by any intermeddling with his property, or assumption of a r’gbt to dispose thereof, since it has become the plaintiff’s. He has been guilty of no conversion of the plaintiff’s property; and t|lei.ef0|-e there must be judgment for the defendant.

Present, Grimke, Waties, Johnson, Trezevant, and Brevard, Justices ; Bay, J. absent.

Note. See Pyne v. Dor, 1 T. R. 55. Tenant in tail, expectant on an estate for life without impeachment of waste, cannot maintain trover for timber severed from the estate: the property being in the tenant for life.  