
    JESSE LEWIS v. HENRY GIBSON.
    (S. C., Thomp. Cas., 234-237.)
    Jackson,
    April Term, 1860.
    1. FRAUDULENT SALES. To avoid money liability for homicide. No defense for conversion.
    A person guilty of homicide is not only liable for costs of prosecution in case of conviction, but is liable for damages at the suit of the personal representative of the deceased, and a sale of his property for the purpose of avoiding such liabilities to a purchaser apprised of the purpose, confers no title except as between the parties themselves. Such sale is valid as to all except creditors and subsequent purchasers without notice. One having- no claim to the property or demand ag-ainst the- vendor cannot defend himself against the suit of such purchaser for a wrongful conversion of it, because of such sale. [Who are creditors. Notes 3-9 under sec. 3143 of the Code. Sales binding between the parties. Notes 56, 57, 64-75 under said section. Conveyance obtained by fraud (not a fraudulent conveyance to defeat creditors) resisted by one in possession. Swan v. Castleman, 4 Bax., 265-273.]
    '2. BAILMENT. For safe keeping, conversion by bailee.
    The depositary of a horse for safe keeping is g-uilty of a conversion, when he gives up the possession and use to another, either as a loan or for hire, though it seems that such a moderate use of the horse by the depositary as is consistent with his safety and well being would not render the depositary liable in trover. Any unauthorized assumption of ownership, or control over the property of another is in law a conversion. [See White v. Edgman, 1 Tenn., 19; Angus v. Dickerson, Meig-s, 459; Horsely v. Branch, 1 Hum., 199; Cain v. Kelly, 4 Hum., 472; Coward v. Thompson, 4 Cold., 442; Scruggs v. Davis, 5 Sneed, 261; Jordan v. Greer, 5 Sneed, 165; Bell v. Cummings, 3 Sneed, 275; Jones v. Allen, 1 Head, 626; Childress v. Ford, 1 Heis., 483; Traynor v. Johnson, 3 Head, 44; Williams v. Elkins, 1 I-Ieis., 91; Elmore v. Brooks, 6 I-Ieis., 45; Boaclr v. Turk, 9 Heis., 708; Bank v. Trenholm, 12 Heis., 524; Branner v. Branner, 1 Lea, 101; -Trousdale v. Thomas, 3 Lea, 723. Waiver of conversion. Bell v. Cummings, 3 Sneed, 275; Traynoi- v. Johnson, 1 Head, 51; Huffman v. Hughlett, 11 Lea, 553; Scruggs v. Davis, 5 Sneed, 265; Cobb v. Wallace, 5 Cold., 546.]
   Caruti-iers, J".,

delivered the opinion of the court;

This is an action of trover for a horse, in which two legal questions arise upon the charge of the court, upon which a reversal is asked by the plaintiff, who- failed below. First as to the right of property in the plaintiff, the jury were instructed to this effect, that if the horse belonged to one who had committed a felony, and he sold him with the intent and purpose of evading’ any pecuniary liability that might devolve on him in consequence of his crime, and the plaintiff concurred in that object and purpose, he would get no title, but that the transaction would be fraudulent and void.

The horse was the property of one of the- Lewises, sons of the plaintiff, who> had murdered the sheriff of Campbell county, and his deputy, for which they were afterwards tried, convicted of murder in tbe first degree, and executed under the judgment of this court. The proof of change of title is made by Allen Lewis, another son of the plaintiff. He says that a day or two after his brothers, John and Jesse, were said to have killed Gibson and Queener, he met them in the,road, and they told him that under the circumstances they could not return to get their horses, and wanted to sell to him; that he bought them, and in three or four days afterwards sold them to his father to pay for them. This was early in August, 1858. He did not pay for the horses. He says he took his father’s note for the price, but nothing has been paid by either. Neither of them ever had possession. Allen does not state what price he was to give, or how he bound himself to- pay, or for what amount he took his father’s note, or what has become of it, or to whom it was payable. This kind of proof is certainly insufficient to establish a change of title from the former owners to the plaintiff. But if this were otherwise the transaction would be void for fraud, as upon the ground stated by the court. But as to what persons will hereafter be noticed. A person guilty of homicide is not only liable for costs of prosecution in case of conviction, but is liable for damages at the suit of the personal representative of the deceased. If he disposes of his property, even by sale, under these considerations, for the purpose of avoiding such liabilities, and the purchaser buys to aid him in that purpose, such a sale confers no title except as between the parties 'themselves. Much less would a transfer without consideration for the same purpose.

But we presume that this objection to the sale co-uld only be available to creditors, or to persons entitled to damages, or subsequent purchasers, and not by one who has no claim to the property or demand against the vendor, but one who is charged with the wrongful conversion of it. The statute of frauds of 1801 confines the objection to the creditor and purchaser, and so are all our decisions; so far then as the charge allows the defendant to avail himself of this objection to the title of the plaintiff, there is error, and the jury may have been misled by it. It may be that the verdict would have been the same upon the ground that there had in fact been no sale so as to vest the plaintiff with title as against any one, but that question should have been submitted to the jury.

The home was placed in the possession of defendant by those who had taken charge of the prosecution, previous to any arrest of the Lewises, for safe keeping. After the arrest, it is alleged that he was taken by the creditors of the former owner, and applied to the satisfaction of his debts. But this is not legally made out in the proof. If this- were shown, it might be a question whether any damages at all could be recovered; they should only be nominal even if the plaintiff established his title by purchase as against defendant, and proved a previous conversion. But the case calls for no opinion on that point now, and none is given.

2. On the other question in the case as to the law in relation to a conversion, we think his honor went a little beyond the law when he instructed the jury that a depositary of a horse for safe keeping might not only use it for himself and family, moderately, but might “even loan it out to others without being subject to any liability for a conversion, provided the property was in no way injured, and his purpose was all the time only to take care of the property for the true owner.” Such an assumption of ownership, on the part of a bailee to keep as is implied in loaning out the animal to others to be used, would, we think, be a conversion. The general principle is that any unauthorized assumption of ownership over the property of another is, in law, a conversion. It may be that such a moderate use of a horse placed in the custody of another to keep without reward, as is consistent with his safety and well being would not render the bailee liable in trover; but to give up the possession and use to another, either as a loan or for hire, is unauthorized. The court held that any use or hiring for profit or advantage would be a conversion, but not so where it was without advantage or gain to the bailee.

For errors in the charge then, upon both points, we feel constrained to grant a new trial, although from what we can see of .the case the verdict may have been the same upon a correct charge.

Judgment reversed.  