
    Joseph W. Davis v. Eli Hoppock.
    When, in an action to recover damages for the unlawful conversion of personal property, the issue made by the pleadings is, whether the plaintiff, at the time of the alleged conversion, was the owner of the property, and as such entitled to its immediate possession, it is competent to the defendant to show that the legal title was at that time vested in a third person, and that the plaintiff was not in the possession.
    (Before Duer and Woodruff, J.J.)
    January, 1857.
    Appeal by the defendant from a judgment in favor of the plaintiff, for $1542.76 and costs, founded on the verdict of a jury for that amount.
    The cause was before the court upon a case containing all the evidence given on the trial, and the exceptions then taken by the counsel for the defendant.
    The action was brought to recover damages for a wrongful conversion by the defendant of certain goods and chattels, particularly described in the complaint; and the complaint averred that, at the time of the alleged conversion, the plaintiff was the owner and entitled to the immediate possession of the goods and chattels so described.
    The answer (inter alia) denied that at the time of the alleged conversion, the plaintiff was the owner and entitled to the immediate possession of the goods and chattels mentioned and described in the complaint.
    Upon the trial, the plaintiff proved that the goods in question had been taken possession of, and sold by the defendant, and that he, the plaintiff, some years before, had purchased the. same at a sheriff’s sale, under an execution against persons who were then in possession as owners.
    Evidence was also given on the part of the defendant to show that the title so acquired by the plaintiff, by an arrangement between him and the former owner, had ceased before the seizure and sale of the goods by the defendant.
    When the testimony on the part of the plaintiff was closed, the defendant offered to show that, at the time of his alleged conversion, the title and right of possession to the property were vested in one Mrs. Frances Jackson; that her husband was in possession as her agent or tenant, and that he the defendant had sold the property with her knowledge and consent, under a mortgage which she had given to him to secure certain advances made by him to her husband.
    The counsel for the plaintiff objected to this proof, and the court excluded the same, and ruled substantially, that the only proof open to the defendant, under the pleadings, was to contest the taking of the property, or any part of it, and to show the value of that which had been taken.
    To this ruling the defendant’s counsel excepted.
    When the testimony on both sides was closed, the counsel for the defendant offered to argue to the jury the question of the plaintiff’s ownership of the property as against the defendant.
    To this the plaintiff’s counsel objected, and the court ruled that the question was not open to the jury.
    To this decision the defendant’s counsel excepted.
    When the counsel on both sides had summed up, the court charged the jury, “ That the only question for them to consider was, the value.of the property taken by Hoppock; that the defendant could not go into the question of ownership under the pleadings; that the question of value was for them to decide under the testimony, and that they must give the plaintiff a verdict for what they deemed the fair market value of the property.”
    To this charge the defendant’s counsel excepted.
    It was under this cliarge that the jury gave the verdict that has been stated.
    
      O. W. Sandford, for the defendant,
    Upon the exceptions that have been stated, and upon others stated in the case, insisted that the judgment ought to be reversed, and a new trial be granted.
    
      W. M. Evarts, for the plaintiff, contra.
    
   By the Court. Duer, J.

It is not necessary now to determine whether it was competent to the defendant to show under the pleadings that he was himself the owner of the property in question at the time of its alleged conversion, but we are clearly of opinion that it was competent to the defendant to show that the plaintiff was not the owner of the property, and as such entitled to its immediate possession at the time mentioned in the complaint. It was this issue that the pleadings raised, and which the complaint tendered by express words, and it was upon the truth of the allegation in the complaint that the plaintiff’s right to maintain the action was entirely rested; to maintain his action, he was bound to prove the truth of the allegation, and we see no reason to doubt that the defendant, under the denial in his answer, was legally entitled to contest its truth. The case is not analogous to those in which the averment in a complaint of the ownership of the plaintiff is a mere conclusion of law from facts previously stated, and therefore not the proper subject of an issue. The averment in this complaint is not a conclusion of law, for no facts are stated from which such a conclusion would follow. It is not a conclusion of law but the affirmation of a fact, the truth of which the defendant, by not denying, would have admitted, and thereby have released the plaintiff from the necessity which the complaint imposed upon him of proving it upon the trial.

We are also of opinion that, under the denial in the answer, it was competent to the defendant to disprove the allegation in the complaint by showing that, at the time of the alleged conversion of the property, the ownership and right of possession were not in the plaintiff, but in Mrs. Jackson. As it had been proved that the plaintiff was once the owner of the property, the proof that was offered that he was not the owner at the time of the alleged conversion, was exactly of the character by which the denial in the answer could alone be sustained. To reject the offer was to treat the denial in the answer as irrelevant and immaterial. We think the proof ought not to have been excluded, and that its exclusion was error.

We also think that the defendant’s counsel was entitled to go to the jury upon the question, whether the title which the plain-* tiff had acquired was not subsequently divested by an executed agreement between him and the former owners of the property? There was a real conflict in the evidence upon this question, and that on the part of the defendant had been received without ob* jection. We think that the question was material, and, as such, ought to have been submitted to the determination of the jury. The charge of the court was, therefore, erroneous in submitting to the jury, as the only questions in the cause, the taking and value of the property.

For these reasons, without adverting to other exceptions, the judgment for the plaintiff must be reversed, and there must be a new trial, with costs to abide the event.  