
    Benjamin F. Hunt, Jr., Respondent & Plaintiff, v. William Moultrie & Jane P. his Wife, Appellants.
    In an action, to recover the possession of family portraits, by one having a paper title from the original owner (the plaintiff's paternal grandmother); it appearing that the plaintiff had permitted his father to have the possession of them for several years, and that the latter took them to the residence of the defendants, and left them there temporarily, (one defendant being his daughter, and the other the husband of such daughter,) the plaintiff does not forfeit his right of property, because the defendants, to bis knowledge, and without objection from. him, repaired the pictures while in their possession, at their own expense, they not then claiming title, and the plaintiff not having disclaimed it.
    Declarations, made by the plaintiff, tending to show that he was not the owner, though competent as evidence against him on the question of title, cannot operate as an estoppel to his claim of property, when it does not appear that such declarations ever came to the knowledge of the defendants, or have been acted upon by them.
    The facts that; the father, in his lifetime, brought an action against the defendants, and which was pending when he died, to recover possession of the portraits, and made an affidavit that he was the owner of them, and that the plaintiff signed an undertaking in that action as surety for his father, is no bar to an action by the son, to recover the property, after his father’s death, it not appearing that the son ever saw such affidavit, and it also appearing that the father was advised when he commenced such suit, that it should be brought by his son as owner, but could be maintained by the father as bailee; nor do such facts estop the plaintiff from claiming title as owner, as against defendants who have no claim of title, or right of possession conferred, or attempted to be conferred on them, by any one claiming to own them, or the right to have the possession of them.
    (Before Bosworth & Woodruff, J.J.)
    Argued, June 16;
    decided, July 11, 1857.
    The defendants appeal from a judgment rendered against them on the trial of the action, by the Court, without a Jury.
    This action was brought, to recover the possession of seven family portraits, and of another painting, which, the plaintiff alleges, his paternal grandmother sold, and conveyed to him, by a written transfer, signed, and acknowledged by her, and in these words, viz.:
    . State of Massachusetts,
    Watertown.
    Know all men by these presents that I, Jane Hunt, widow, for and in consideration of good causes me thereunto moving, and also for and in consideration of the sum of ten dollars to me in hand paid, have granted, bargained, sold and conveyed, and by these presents do grant, bargain, sell and convey unto my grandson, Benjamin Faneuil Hunt, junior, all the family paintings, and also the set of prints now in my house at Watertown, of every kind and nature, to have and to hold the same to him and his assigns for ever, upon the trust nevertheless, and to and for the uses following, and for no other.
    First.—For my use during my life.
    Second.—At my death, for the sole use and behoof, and at the disposal of my said grandson, in the confidence that he will keep and dispose of them as family memorials in his discretion, and so use and dispose of them that they may never be sold or disposed of out of his family. Witness my hand and seal, this twenty-seventh day of September, one thousand eight hundred and forty-three.
    Jake Hunt. [l. s.]
    The complaint further averred, that Jane Hunt died at Water-town, on the 5th of July, 1854. The paintings were soon removed to Col. B. Hunt’s residence in South Carolina, he being plaintiff’s father, and left in his possession and control, till after he removed to the city of New York in 1853, and until March, 1854, when he removed them to New York, and having then no residence of his own, he left them temporarily with William Moultrie for safe keeping, his wife being a sister of the , plaintiff. Moultrie refused to give up the paintings, and kept them concealed. It also alleged, that no recovery in damages would be a compensation, and prayed for a restoration of them, and for the appointment of a receiver to take possession, pendente Me.
    
    The defendants, by their answer, put the material allegations of the complaint at issue, and also alleged that B. F. Hunt, senior, in and before 1843, owned the portraits, and in consideration of natural love and affection, and for a valuable consideration, gave and presented them, as a free and voluntary donation, to the defendant, Jane B. his daughter, and the wife of William Moultrie, and that the plaintiff, until about the time of bringing this suit, never claimed any title, but on the contrary disclaimed it.
    The action was tried in Juno, 1856, before Mr. Justice Hoffman, without a Jury.
    On the trial the execution and delivery of the instrument of the 27th of September, 1843, its acknowledgment, and the identity of the portraits in question, were proved.
    Witnesses were examined, in relation to the portraits, by whom they had been controlled, and where they had been kept before and after the death of Jane Hunt; and as to acts, and declarations of the plaintiff, in respect to his ownership, and their testimony, so far as it is material, is noticed in the opinion of the Court.
    It appeared by evidence given by the defendants, that in June, 1854, B. F. Hunt, Senior, brought an action in the Supreme Court against William Moultrie & Francis L. Bechet, to recover possession of these portraits. To obtain the possession of the portraits in that action, B. F, Hunt, Senior, made the following affidavit:
    SUPREME COURT.
    Benjamin F. Hunt, Senior, against
    
    William Mootry & Francis L. Bechet.
    Affidavit on claim of delivery of personal property.
    City and Cdunty of Hew York, ss.:
    Benjamin F. Hunt, senior, plaintiff in this action, being duly sworn, says, that he is the owner of the following personal property claimed in this action, that is to say: six family pictures, being the portraits of the ancestors of the plaintiff, by her last will and testament, to Benjamin F. Hunt, Junior, and son of the said plaintiff, for the use of the plaintiff, and who has held the possession of the same for twenty years; that the said property is Wrongfully detained from the plaintiff by William Mootry and Francis L. Bechet, the defendants herein. That the alleged cause of the detention thereof according to this deponent’s best knowledge, information and belief, is as follows: The said William Mootry was the bailee of the said pictures, the same having been recently left in Ms possession to keep for the plaintiff until called for; and the said Mootry delivered the possession thereof, or some of them, without the knowledge or consent of the plaintiff, to the said Francis L. Bechet, upholsterer, Ho. 420 Broome street, Hew York, to clean for him; that the said property has not been taken for a tax, assessment or fine, pursuant to a statute, or seized under an execution or attachment against the property of the plaintiff, and that the actual value of said property, according to the best knowledge and belief of this deponent, is five thousand dollars
    Benjamin F. Hunt.
    Sworn this 24th day of j June, 1854. j J. M. Baldwin,
    Commr. of Deeds.
    It did not appear that the plaintiff ever saw this affidavit, or knew its actual contents. But it appeared that he signed an undertaking in that action, as surety for his father, which recites that his father, the plaintiff therein, “ has made an affidavit that the defendants wrongfully detain certain personal property, &c., and the plaintiff claims the immediate delivery of such property, as provided for,” in chap. 2 of the 7th title of the Code.
    The defendants in the present action, put that affidavit, and undertaking, and the complaint in that action in evidence.
    That action was at issue and on the calendar, when B. F. Hunt, Senr., died.
    It was proved by the attorney who brought that action, that he “ advised the suit to be brought by his son,” (the plaintiff), “as owner of that property,” and that Col. Hunt, the father, insisted “he would bring it as bailee,” and the attorney “advised him he could do so.”
    The defendants objected and excepted to the admission of this evidence.
    Justice Hoffman decided as follows:
    This action having been brought to trial at the Special Term without a jury, it is now found and declared that the plaintiff is the owner of the eight several pictures, mentioned or intended in the complaint, being: 1. Portrait of Madame Ann Bureau; 2. Portrait of Andrew Faneuil; 3. Portrait of wife of Andrew Faneuil,' 4. Portrait of Peter Faneuil; 5. Portrait of Benjamin Faneuil; 6. Portrait of wife of Benjamin Faneuil; 7. Portrait of Col. Benjamin F. Hunt by Stuart; painting representing firearms and shooting tackle; and is entitled to the immediate possession thereof, and that neither of the defendants has any title to, or interest in the said pictures, or any of them; and it is therefore ordered and adjudged, that the said defendants, and each of them, do forthwith deliver to the said plaintiff, or to his attorney, each of the said eight pictures to be held by the said plaintiff, as his property, under the bill of sale set forth in the complaint; and that the said defendant William Moultrie pay to the plaintiff, or his attorney, &c.
    There was no evidence that J. B. Hunt, Senr., ever attempted to give or sell to Jane B. Moultrie, the portraits, or any interest therein.
    From the judgment entered, the defendants appealed to the General Term.
    
      E. W. Stoughton, for appellants.
    
      D. D. Field, for respondent.
   By the Court. Bosworth, J.

By an instrument in writing signed by Jane Hunt, and sealed with her seal, dated the 27th of September, 1843, acknowledged before a proper officer and delivered, and for a pecuniary consideration; Jane Hunt, sold and conveyed the paintings in question to the plaintiff.

The only respect in which the sale and transfer came short of a sale absolute in all respects, in presentí, is, that by the terms of the instrument, the defendant was to hold them for the use of the grantor during her life. She died on the 5th of February, 1844. The title passed at the time, but the purchaser’s possession of them during her life, was to be such that she might have such use and enjoyment of them during that time, as the nature of the property could, when thus owned and held, be made to furnish.

The defendants claim that the paintings are the property of Jane B. Moultrie, one of the defendants. They claim title from Col. Hunt, the father of said Jane B. and of the plaintiff.

There is not the slightest evidence, that Col. Hunt ever attempted to give or sell the paintings to Jane B. Moultrie, or convey to her any right to, or interest in them, or that he claimed to be competent to do so.

The defendants show no title, and the plaintiff, if he fails to recover, notwithstanding he shows a good paper title, must fail by reason of bis being a party to an undertaking, as surety for bis father, in an action brought by the latter in June, 1854, to recover these paintings.

The undertaking itself does not recite that Ool. Hunt was owner of them, but merely “that the defendants wrongfully detained” them, and that, he claimed “the immediate delivery of such property.”

There is no evidence that the plaintiff in this action, read the affidavit refered to in that undertaking. The counsel under whose advice Col. Hunt commenced that action, “advised the suit to be brought by his son as owner of the property.” “ Col. Hunt was vexed With Moultrie; and insisted he would not bring the suit in his son’s name. That he would bring it as bailee.” The counsel “ advised him he could do so."

After the plaintiff’s grantor had died, he went to her then late residence for the paintings, and took them away.

I should conclude, from the whole evidence, that the plaintiff, after the death of his grandmother, had the paintings taken to his father’s. That, for his gratification, the latter was allowed to retain possession of them; and that, in this way, they were placed in the house of the defendants, who commenced housekeeping in the fall of 1853.

In February, 1854, or about that time, Col. Hunt went to the defendants, to reside with them, and continued there ■until April.

It is during this time, as the defendants claim, that Col. Hunt gave the paintings to his daughter, Jane B. Moultrie.

Col. Hunt left the defendants in or about April, 1854, and1 went to the residence of John A. Weisse, where he staid about six weeks. He went from that place to the plaintiff’s house, and staid there until he died.

The papers in the replevin suit commenced by Col. Hunt were put in evidence by the defendants.

Those papers bear date the 24th of June, 1854, and contain a sworn statement of Col. Hunt, that he left them with William Moultrie, as his trustee, to be kept for the plaintiff until he called for them.

The complaint in that suit, which is verified, states that Moultrie and Bechet wrongfully detained these portraits from Col. Hunt.

On a careful consideration of the whole evidence, we think the finding of the Court at Special Term, that “the plaintiff is the owner of the eight several pictures mentioned,” in the complaint, should not be disturbed by us.

It having been found that the plaintiff was the owner of the property, and the defendants showing no right to the possession of them, the plaintiff had a right to insist that they should be delivered into his possession.

But it is urged in behalf of the defendants, that the plaintiff is estopped from claiming title, for the reasons—first, that he has asserted- the title to be in another; second, because he has stood by’in silencé and seen a third person mdfcing repairs to and expending money, on the pictures; and third, because he allowed such repairs to go, on without asserting his own title.

A declaration that the property belonged to another, would be strong evidence against the plaintiff, but would not of itself conclude him. (Wallis v. Truesdel, 6 Pick. 457; Maybee v. Sniffen, 2 E. D. Smith, 1.)

Palmer does not testify, that in the conversation of which he spoke, Moultrie claimed title or ownership, or that the plaintiff disclaimed it. The remark, that “ Moultrie was foolish in spending money on the pictures in repairing them,” in the absence of any claim of right by Moultrie, and of all evidence of title on his part, should not bar the plaintiff from asserting title.

The statement of the plaintiff, testified to by George H. Moultrie, was not communicated to the defendant, and cannot, therefore, be said to have influenced his conduct.

It is not operating to his prejudice, or as a fraud upon him, to allow the plaintiff to prove that, in truth, he was the sole, absolute owner.

If there was any evidence that Col. Hunt had sold or given the paintings to either of the defendants, and that the plaintiff knowing this, or that the defendants believing themselves to be owners, were expending moneys to repair them, and that, knowing this, the plaintiff had suffered such expenses to be incurred, without interposing a claim of title, a different case would be presented.

But there is an entire absence of any evidence to show that the defendants ever supposed they had any title, or that the plaintiff, to their knowledge, ever disclaimed ownership, or asserted the title to be in another. -

We think that nothing was proved by the defendants which estopped the plaintiff from asserting and proving the title to be in himself, and that the finding by the Court, that he was the actual owner, is not so clearly against evidence as to justify us in granting a new trial on that ground. Mr. and Mrs. Weisse prove satisfactorily that there were eight'pictures, and sufficiently identify them.

The judgment should be affirmed.  