
    Pierce v. Evans et al.
    
    1. Trover: estoppel of plaintiff. Where, pending an action of trover for personal property, the plaintiff sells it to the vendee of defendant in the action, he will thereby be deprived of his right to recover its value.
    2. Municipal corporation: confinement of estrays. That the city marshal, after taking up a beast under an ordinance against estrays, took it for keeping to a pound outside the corporate limits, will not render him liable for conversion.
    
      Appeal from jBlackhawlc Ovrcuit Cowrt.
    
    Saturday, June 7.
    Action at law to recover the value of a mare which plaintiff alleges was, while his property, taken and converted to defendant’s use; damages in tbe sum of $100 are also claimed by plaintiff which resulted from the taking and converting of tbe property by defendant. There was a trial resulting in a verdict and judgment for plaintiff. Defendant appeals.
    
      Miller & Preston for tbe appellant.
    
      Hewitt <& Hodge for tbe appellee.
   Beck, Cb. J.

—An officer of tbe city of "Waterloo took up tbe mare of plaintiff^ which be found in tbe city, in obedience to an ordinance prohibiting stock from running at large within tbe city limits. Tbe mare was kept by tbe city authorities in a yard provided by tbe marshal of tbe city, outside of tbe boundaries, for impounding stock found running at large in violation of tbe ordinance. The defendant Evans, who was at tbe time city marshal, sold tbe mare in obedience to and under tbe provisions of tbe ordinance to one Mesick. No question is made as to tbe regularity of the marshal’s proceedings under tbe ordinance, except that tbe pound in which tbe mare was kept, prior to tbe sale, was not within tbe city limits. This fact, as will be hereafter seen, was regarded as a ground of objection to tbe marshal’s jurisdiction in selling tbe property.

The city of Waterloo and the deputy of the marshal were joined as defendants.

After tbe action was commenced, plaintiff sold the mare to Mesick, who had purchased it at the marshal’s sale and received payment therefor. Plaintiff agreed to assign whatever judg ment he should recover in the case to Mesick, but no assignment of the claim was made to him.

I. Tbe action, it will be remembered, is for tbe conversion of tbe property, tbe recovery of its value with damages resulting from the act of defendant in taking and converting it to his own use. But plaintiff bad, prior to the trial, sold tbe property and recovered its value from tbe purchaser at tbe marshal’s sale. The act of selling and tbe act of tbe purchaser at tbe marshal’s sale, in buying from plaintiff, must be regarded as operating to restore the possession of the property to plaintiff at the time of the transaction. The law presumes that he acquired the possession of the mare and transferred it with his title by the sale to Mesick. Under these circumstances, he was not entitled to recover in this action the value of the property. The seventh instruction given by the court to the jury announces a different rule; it is, therefore, erroneous. It must be remembered in this connection that the transaction between plaintiff and Mesick was a sale of the property, not a transfer of plaintiff’s light of action.

II. The court instructed the jury that the fact of the pound being out of the city limits, took the property ont of the jurisdiction of the marshal, and that his detention and sale therof was, therefore, wrongful, and he was liable as a trespasser. This instruction is also erroneous. The marshal acquired jurisdiction to take up and sell the mare under the ordinance. After taking the property, in the absence ,of any requirement of the law or ordinance to the contrary, he could keep it in any proper place to await further action required by the ordinance. The property was in his custody, and for its safe, keeping he was responsible. ¥e know of no principle of law that required him to keep it within the city limits. It may be true that he had no jurisdiction to seize it without the city, but when lawfully taken and lawfully in his possession, he could keep it in whatever place he might provide for that purpose, being responsible for its safety to its owner and the city.

Reversed.  