
    COTTON W. BEAN, Respondent, v. GEORGE W. EDGE, Appellant.
    
      Sale of chattels—what constitutes.—Conversion—when person, issuing process liable for.—Amendment of complaint—when may be allowed,.
    
    B., the lessee of certain premises, sub-let the same for the unexpired term, together with certain of his chattels thereon, by a lease providing as follows: that 'On performance of covenants and payment of rent (a large part of which was paid in advance by indorsed notes), B. would, at the expiration of the term, convey said chattels to the sub-tenant; that if a loss by fire occurred, B. was to receive out of the insurance money (the sub-tenant agreeing to keep the chattels insured), such proportion as the rent then due might bear to the whole rent, the balance to go to the subtenant; that upon default, re-entry could be made, and the chattels sold, and the rent due taken from the proceeds, the balance to go to the sub-tenant.
    
      Meld, that under the above agreement, B. did not part with title to the chattels; also, that a sale thereof by B. during the tenancy, unaccompanied by manual delivery, raised no presumption of fraud.
    -The sheriff, under a distress warrant authorizing him to “ distrain the goods, &c., of the tenant,” having taken the property of a third person, the party who issued the process (the defendant herein), caused the goods to be appraised under the statute (of New Jersey), and subsequently received the proceeds of the sale thereof.
    
      Meld, that the defendant thereby became liable for the conversion of the said chattels.
    Upon the trial, plaintiff moved to amend his complaint to include interest 'on the demand, and the referee reserved his decision, no objection being made to his so doing.
    
      Meld, that an allowance of the amendment, made in the findings of the referee, was in time.
    Before Sedgwick:, Ch. J., Speir and Russell, JJ.
    
      Decided December 6, 1880.
    Appeal from judgment entered on report of referee, in favor of plaintiff.
    
      This was an action for damages, from an alleged unlawful conversion of plaintiff’s goods and chattels, by defendant’s intestate, in taking and selling them under distress warrants for rent, in the State of New Jersey.
    The intestate was the ground landlord. He leased the premises to Moses H. Bean. Moses H. Bean leased them to one Ely, for the unexpired term, and also the goods, chattels and household furniture in the house. These chattels were those afterwards taken by the distress warrants. Moses H. Bean, in the lease by him, agreed that on payment of rent and performance of covenants, at the expiration of the term he would sell and convey to Ely, by a good bill of sale, all the goods and chattels. If there was a loss by fire,' Moses H. Bean was to receive out of insurance money (Ely agreeing to keep the goods insured), such proportion as the amount then due for rent would bear to the whole rent, and the rest of the insurance money to go to Ely. Right to re-enter upon default was reserved, and if there were re-entry, the chattels were to be sold at public auction, and from the proceeds, the rent due was to be paid, and the overplus to go to Ely.
    The greater part of the rent was paid in advance by notes of Ely, indorsed by a third person. Moses H. Bean transferred some of these notes to the plaintiff, and the latter, after they had been due for some time, "re-transferred them. About a year before the ground lease and the other lease were to expire, Moses H. Bean made and delivered to the plaintiff a bill of sale of “all my right, title and interest in and to” the chattels. The plaintiff paid to Moses H. Bean, as a consideration of this bill of sale, or of the transfer of the note, the sum of $3,000.
    Rent being paid due to the grdund landlord (the intestate of defendant), he made and placed in the hands of a constable, distress warrants, that on their face, empowered the constable “to distrain the goods and chattels of Moses H. Bean,” in the premises leased as above “ for rent due me for said premises.”
    A statute of New Jersey was read, empowering landlords to distrain, for rent due them, the goods of their tenants, and not of any other person, which may be found upon the demised premises.
    
      Marsh & Wallis, attorneys, and. Luther R. Marsh, of counsel, for appellant.
    
      Erastus New, for respondent, among other things, urged:
    The acts of the defendant constituted a conversion of the property in question (Latimer v. Wheeler, 3 Abb. Ct. App. Dec. 42; Boyce v. Brockway, 31 N. Y. 490; Allen v. Crary, 10 Wend. 349 ; Wintringham v. Lafoy, 7 Cow. 736; Woodside v. Adams, 11 Vroorn [N.Y.] 417).
   Bv the Court.—Sedgwick, Ch. J.

The answer in this action admits that the defendant’s intestate, who was in being at the time of the answer, caused the goods to be appraised, under the statute, and the testimony shows that he thereafter received the proceeds of the sale. This, besides other reasons that need not be specified, establishes the fact that he was responsible for the taking of the goods.

The answer, also, after setting out the statute of New Jersey, was that the goods taken were the property of Moses H. Bean, and were distrained for rent due by Moses H. Bean. It is not avowed that they were the goods of Moses H. Bean’s lessee,—that is, of Ely, dis-trained for rent due by Ely; so that any argument that Ely was the owner of the goods would not, under the New Jersey statute, justify their being distrained for rent due by Moses H. Bean. But the defendant, perhaps, has a right to maintain in this action, that the plaintiff did not own the goods at the date of the distress, and is not entitled to recover for their value, but that Ely did. That position calls for examination.

The plaintiff claimed to show his ownership of the goods, by bis proof that Moses H. Bean had assigned and transferred them to him a year before the distress warrant was issued. Assuming that the defendant had a status that would enable him to impeach the bill of sale, as fraudulent against the landlord, that question was.not, in fact, litigated upon the trial; it was not presented to the referee upon the trial; nor ,was any request made concerning it. On the trial, the contest was that Moses W. Bean’s bill,of sale did not transfer the goods to the plaintiff, because Ely’s interest in them was of a kind that amounted to a title, or in some way took the title out of Moses W. Bean.

It cannot be questioned that if, at the time of the distress, the goods seized were not the goods of the tenant, Moses W. Bean, but had theretofore been so transferred to the-plhin tiff that they had become his goods, the distress was forbidden by statute of Hew Jersey, and was a trespass.

The remaining matter to be examined then is, was Ely’s interest in the goods such that Moses W. Bean could not transfer them to the plaintiff % There is no doubt that before Moses W. Bean’s lease to Ely, the former was the owner of. the goods, and had unlimited power of disposition over them. That lease did not convey the goods. On the contrary, it expressly provided for a bill of sale to Ely at the end of the term, on condition, that at that time there should be no default by Ely in payment of rent or- performance of covenant. Ely’s rights as to the goods did not extend to his becoming the owner of them, under any other, circumstances. If they should be burned, and he had performed his covenant to insure them, he would be ' entitled to an interest in the insurance money. If there were default in the rent, the lessor, Moses H. Bean, might, at. his option, repossess himself of the goods and sell them at public auction, and from the proceeds pay the rent due, and pay the rest to Ely. All this gave no title to Ely. Whatever was the exact nature of Ely’s interest, including a right to possession, the title and the property remained in Moses H. Bean. The transfer of that title would not affect the rights of Ely, so long as the person having title was ready to use it as Ely’s right required it should be used. Ely would enforce his right, not by reason of any interest in the property or power of disposition over it, but simply by reason of the personal obligation of Bean or his transferee, to do the things covenanted to be done. This is perhaps taking an extreme view of the obligations of Bean’s assignee. I see no reason to doubt that Ely’s interest did not operate to deprive Moses H. Bean of his right or power to sell the property to the plaintiff, and therefore the referee was correct in finding that the plaintiff was the owner of the property that had been taken by the intestate’s distress warrant, as the property of Moses H. Bean.

No doubt is thrown upon the operation of the bill of sale, as transferring the property, by the fact that manual delivery of the property was not made. Actual delivery could not be made, as it was in the possession of Ely rightfully. It may be said further that in such case there was no presumption of fraud, it not being in the actual possession of the vendor.

If the propositions already made are sound, the declarations of Ely that were admitted as evidence on defendant’s exception were immaterial, and did not injure the defense. On the undisputed evidence, it appeared that Moses H. Bean had been the owner of the goods. The declarations of Ely did not affect the testimony that Bean had made the bill of sale to the plaintiff. They only tended to show that Ely had voluntarily abandoned his interest, and that interest, we have held, did not impair the plaintiff’s title or the title of Moses H. Bean.

I think it sufficiently appears that the defense made no objection to the referee’s reserving his decision, upon the motion of plaintiff to be allowed to amend the complaint so that it should demand interest, and that his allowance of the amendment was in time, being made in his findings.

Judgment is affirmed, with costs.

Speir and Russell, JJ., concurred.  