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to one Bowles; and then mesne conveyances from Bowles to the wards of the plaintiff. timony was also offered tending to show that the consideration received by said Heman Ely upon the sale to Bowles was paid to said Charles and Lucy Ely. And also that actual possession of the premises had passed with and by the several mesne conveyances.

Upon this state of the testimony, the court charged the jury, in effect, that if they found the facts in accordance with the tendency of the proof, then the ownership of the plaintiff was sufficient to sustain the action, although his wards were seized only of an equitable estate in the land.

We think there was no error in the charge to the prejudice of the defendant, and that the finding of the jury under it should not be disturbed. True, the power conferred upon the executors of Justin Ely to sell these lands, (beyond the life estates), was to be exercised in the discretion of the executors, and clearly, the exercise of this discretion, could not be delegated by them to another. If, however, the executors had exercised the discretion and had contracted to sell the lands, it would have been competent for them to have transferred the title to the purchaser by an attorney in fact. For in such case, the act of the attorney would be ministerial merely and not at all discretionary. In the case before us, the attorney having assumed to sell and convey, the subsequent receipt of the purchase money by the executors was such an adoption and ratification of the contract of sale as was equivalent to an exercise of the discretionary power of sale by the executors themselves, so that, after possession taken by the purchasers, their ownership in the lands was sufficiently established to maintain an action for the conversion of timber. And if the court below were wrong in holding that plaintiff's wards were seized of an equitable estate in the lands, and not of the legal estate, the defendant was not prejudiced thereby.

During the progress of the trial, testimony was offered tending to show that during the pendency of the action, the plaintiff's wards had each arrived at the age of twenty-one years, whereupon the defendant asked leave to amend its answer so as to show such fact, but declined to amend on condition of the payment of costs. And after the testimony was closed, the defendant moved the court to dismiss the action or direct the jury to return a verdict for defendant on the following grounds:

"For cause defendant says that it appears from the testimony that the ward Joseph became of full age some time in 1870, and the ward Edward became of full age some time in the year 1877, for which reasons defendant says plaintiff is not entitled to the money if recovered. That it does not belong to him as guardian. That since 1877 he has not been the guardian of either or for either of said alleged wards."

We need not stop now to inquire what action the court should have taken if the facts here stated had been pleaded by supplemental answer

before trial. It is enough to say that during the trial, leave to amend was at the discretion of the court, and no issue having been tendered upon this point, it was not error to refuse the motion to dismiss. The rights of the parties as they existed at the commencement of the action should prevail, unless a subsequent change in those rights be shown by supplemental pleadings.

Several other matters, also, are alleged for error, by the plaintiff in error, but we find in the record no cause for reversal of the judgment on its

petition.

By the cross-petition in error, the defendant alleges for error the charge of the court as to the measure of damages. For the purpose of resolving this question, the case may be stated thus: The plaintiff was the owner of land upon which trees were standing and growing. By an act of wilful trespass, the plaintiff's trees were cut and felled. After the cutting down of trees, the trespassers converted the same into cord-wood and railroad ties and sold and delivered the wood and ties to the defendant who being ignorant of the trespass applied the same to its own use. The value of the standing trees was proved; also the value of the ties and wood at the time the same were delivered to and received by the defendant. Testimony was offered by the plaintiff to show that the value of the trees after they were felled was greater than while standing, although less than when converted into ties and wood, which testimony was rejected.

This case was before the Supreme Court Commission and is reported in 32 Ohio St. 571, wherein it was held “Timber was cut from lands of B. by trespassers, who, by their labor, converted it into cord-wood and railroad ties, thus increasing its value three fold. It was then sold to an innocent purchaser who was sued by B. for the value of the wood and ties. Whatever might be the rule of damages" (as against the trespassers) "as against innocent purchasers, B. cannot recover the value of the timber as enhanced by the labors of the wrong-doers after it was severed from the realty," and a judgment for such enhanced value was reversed. The cause being remanded to the court below for a new trial, the court among other things charged the jury as follows:

"The Supreme Court have given us a different rule of damages from that laid down upon the former trial of the case in this court, There, upon the former two trials of this court the judges charged the jury that the plaintiffs would be entitled to recover the value of the wood or ties, as the case might be, as they were when delivered to the railroad company, and they actually received them. The Supreme Court say that that was not the proper rule.

"Now whether the Supreme Court was wrong or not I don't propose to question. And counsel don't claim that I ought to question it.

"There has been some little discrepancy in the opinion of the different counsel as to what the Supreme Court did say. But I have put the interpretation upon it that, as I believe, the Su

preme Court did say, and as I give it to you, and you have not any more right to question whether I am wrong than I have to question whether the Supreme Court was wrong. Now that rule is simply this: That if the plaintiff is entitled to recover, they will be entitled to recover the value of the timber, as it stood in the woods at the time it was cut down by these wrong-doers."

As we understand the rule laid down by the Commission, the value of the timber, as enhanced by the labor of cutting down, was the true measure of damages. And surely, as the labor of felling the trees was a trespass on the real estate of the plaintiff who has waived the wrong done to his realty, such labor was not an accession to the value of his personal property, which the trees first became after they were cut down and severed from the land. The value, at least, of the property after it became personal was the measure of the injury complained of by the plaintiff. This charge of the court, as well as the refusal to hear testimony as to the value of the trees after they were severed from the realty, was to the prejudice of the plaintiff.

But the plaintiff below is not content with this view. He claims that the court erred in refusing to give as the measure of damages, the value of the ties and wood, at the time and place they were delivered to the defendant; thus, bringing into review, the decision of the Commission as reported in 32 Ohio St. 571. A decision of the Commission, which was a court of last resort in this State, equal in authority and dignity with this court, stands as a precedent for our decisions, and should not be overruled except for most cogent reasons. The question then before the Commission, and now before us, is one

of great importance and no little difficulty: Many cases were reviewed by the Commission, as will appear from the report, and after consulting those authorities and some others, it is apparent to us that reported cases are at variance at almost every point in the line of reasoning. It is true, that some principles involved are not disputed

and from these and some others that are indisputable, we think, the true solution of the question can be obtained. We admit as a general rule, that no man can be deprived of his prop. erty without his consent, except by operation of law. Hence, where his property has been taken from him, not by operation of law, and without his consent, he may follow and reclaim it, in specie, into whose hands soever it may come, 80, long as he can establish its identity. And in all cases where the owner seeks to reclaim the possession of his property, being able to establish its identity, the fact that accessions to its value have been made by the labor of those who have wrongfully withheld it, cannot be interposed against the right of the owner to the possession of his property. And in all such cases, it does not matter whether the person from whom it is reclaimed, or the person who enhanced its value by his labor, is a wilful trespasser or a person who came into possession without intentional wrong. A question often

arises, whether property, by reason of changes wrought upon it, has lost its identity, but no such question is made in this case, as the plaintiff, if he had so elected his remedy, most clearly could have re-claimed the cord-wood and railroad ties from the original trespasser, or from the defendant who purchased them. But no such remedy was sought by the plaintiff.

Another undoubted doctrine of the law is, that a person whose property is wrongfully taken or withheld from him, may waive his right to the property in specie, and elect to pursue a remedy for damages only; and in such case, the general rule for the measure of damages is the value of the property at the time it was taken or converted by the wrong-doer. The principle upon which this rule of damages is based is, that justice requires that the injured party should be made whole; but justice to him requires nothing more. This rule is sometimes modified for the sake of the principle, as when the value of the property is subsequently enhanced by an advance in the market price; but the principle, as a matter of legal right, is never departed from. True, the law permits an award of damages in excess of this rule of compensation, when the wrongful act was wanton or otherwise aggravated. But this is permitted by way of punishing the wrong-doer and for example's sake. It is not a matter of legal right in the injured party. For every wrong done, if it can be redressed in damages, the rule is that the injured party shall have compensatory damages, and if the wrongful act was wilful, wanton or malicious, punitive damages may also be awarded. Indeed it appears to me to be axiomatic, that as between equal and exact justice is done when the party man and man where no wrong was intended, wronged is made whole for all that he lost by reason of being deprived of property. Upon this principle it is now established by a clear weight of authority, that a person deprived of his property by an unintentionally wrongful act, who seeks redress in damages, is not entitled to recover from the wrong-doer, an increase of damages by reason of accessions to the value of the property N. Y. 379; 33. Mich. 205; 37 Mich. 332; 84 from the labor or skill of such wrong-doer. 3 Penn. St. 333; 21 Barb. 92; 81 Ill. 359; 49 Miss. 236; 39 Wis. 456; 7 Up. Can. Q. B. 338; 15 Grant (Up. Can. Chy.) 304; 18 Grant (U. C. Chy.) 7; 23 Cal. 306; 26 Maine, 306; 3 Ad. & El. (N. S.) 13 Com. B. 729; 41 Pa. St. 291; 55 Pa. St. 176;

440.

Such being the rule, in an action against one who takes the property of another and converts it to his own use without intentional wrong, it certainly follows: that in an action against an innocent purchaser from such unintentional wrongdoer, the measure of damages would not include the enhanced value of the property by reason of the labor of the first taker. It seems clear, that such purchaser, having been mulcted in damages at the suit of the owner, could not have recourse against his vendor for greater damages, than the

erty of another, so confounds and confuses it with his own, that the distinction cannot be traced, and the other's property identified, that the party so mixing and confusing the property, loses his own.

The Idaho, 93 U. S. 575, Hart v. Ten Eyck, 2 John. ch. 62, 108, Jewett v. Dringer, 30 N. J. Eq. 291, 2 Kent's, Com. 364, Story on Agency, 205, 333, and cases there cited. The principle underlying all these cases, is, that no man shall be deprived of his property without his consent, except upon due process of law. The particular ground upon which the judgment of the court proceeds in the present case is, that because the railroad company was an innocent purchaser of the wood and ties from the original trespassers, a different rule is to be applied in measuring the damages the owner of the wood is to receive, from that that would prevail had the action been brought against the trespassers themselves. To this position I do not assent. The plain logic of the proposition is that the purchaser acquired by his purchase something which his vendors did not own, and consequently had not the ability to impart.

It is admitted that at the moment before the sale the whole property in the wood and ties was in the original owner, but the instant the sale was consummated, it is said, that some part of that property, without his consent, and in a transaction to which he was not a party, has passed to the purchaser; and passed from one who, admittedly, had no title to or lien upon any part of it. And yet it is agreed that the original owner, by reason of his continued ownership, may, in an action of replevin take the property from the purchaser, without accounting to him for any part of its value. The purchaser's rights are thus not only made to depend on the form of the action, but if the action be brought for conversion of the property, instead of giving damages against the purchaser for his conversion, to be measured by the value of the property when he converted it, which, of course, was long after the timber was cut into wood and ties, he is made liable as of the date that the trees were cut from the soil, a point of time long anterior to the date of purchase. How this rule would work or how the liability of the purchaser would be affected, if the wood and ties when purchased were of less value than the timber when severed from the soil, we are not advised, But if anything is settled by the decided cases, it is, that where one wrongfully in possession of the property of another, refuses to deliver it to the owner on demand, he is liable in conversion to the full value of the property at the time of the refusal, not that demand and refusal are necessary prerequisites to the action, but when they appear, they, as a general rule, settle the fact and time of conversion. Gilman v. Newton, 9 Allen 171. The conversion, however, is just as complete, and the time at which the liability therefor is incurred, is as definitely fixed and ascertained, when the property is consumed or

destroyed, or has been converted into realty, as in the case of demand and refusal. The unauthorized act of another in assuming dominion and control over the property by which the rightful owner is deprived thereof, is conversion. Pease v. Smith, 61 N. Y. 477. Hence when the wood and ties in the present case, were used by the company, they were as liable for their conversion as if demand and refusal had been made while it was in the company's power to deliver the same to the owner, and liable for the amount recoverable had demand and refusal been made upon the day the company purchased the property from the original takers. And if demand and refusal had then been made, and the company had refused to deliver the property to the owner, I know of no rule of law, that would relieve it from liability to damages for the full value of the property at the time of refusal. If such is not the rule, what results? When the purchaser is required to pay the real owner for the property, he may recover back the price paid to the wrong-doer, as upon a failure of consideration. This principle is well settled. Eichholtz v. Banister, 17 C. B. (N. S.) 708; Chapman v. Speller, 14 Q. B. 621; Benj. on Sales, § 423. The company would therefore get the wood and ties by paying the original owner the value of the timber when felled to the ground. Either this results or the absurdity follows, that while the original trespasser had neither title to, nor lien upon, the wood or ties, he is enabled in an action for the price paid by the purchaser, to recoup the amount which his labor added to the value of the property. He would thus gain and accomplish by the sale, what otherwise, he could not have obtained. The principle that the purchaser in such case, however innocent, sustains no better relation to the property than did the party from whom he purchased it, is well supported by authority.

In Silsbury v. McCoon, supra, it was said by Ruggles, J., that "the thief who steals a chattel or the trespasser who takes it by force, acquires no title by such wrongful taking. The subsequent possession by the thief or trespasser is a continuing trespass; and if during its continuance the wrong-doer enhances the value of the chattel by labor and skill bestowed upon it, as by sawing logs into boards, splitting timber into rails, making leather into shoes, or iron into bars or into a tool, the manufactured article still belongs to the owner of the original material, and he may re-take it, or recover its improved value in an action for damages. And if the wrong-doer sell the chattel to an honest purchaser having no notice of the fraud by which it was acquired, the purchaser obtains no title from the trespasser, because the trespasser had none to give. The owner of the original may still re-take it in its improved state, or he may recover its improved value. The right to the improved value in damages is a consequence of the continued ownership. It would be absurd to say that the original owner may re-take the thing by an action of replevin, in its improved

state, and yet that he may not, if put to his action of trespass or trover, recover its improved value in damages." This doctrine was adhered to in Joslin v. Cowee, 60 Barb. 48, where it was said, "It is only innocent purchasers who purchase property converted into another species, that can be protected, and not even the innocent purchaser is so protected who takes the title from a trespasser or wrong-doer, because he had none to give."

The case of Tuttle v. White, recently decided by the supreme court of Michigan, and reported in the 9th volun.e of The Northwestern Reporter 528, is quite in point. The action was in trover for the conversion of certain saw-logs. The defendants purchased the logs in good faith, from parties who wrongfully cut them upon the land of the plaintiff. The court in disposing of the case, said "A person in purchasing personal property runs his risk as to the title he is acquiring, and if he is unfortunate enough to purchase from a trespasser, or one who has no title and can give none, he must suffer the loss or look to his vendor." The plaintiff was held entitled to the value of the logs at the time the defendant purchased and assumed control over them.

To same effect is Nesbit v. The St. Paul Lumber Co., 21 Minn. 491.

property, filed answers, in the nature of crosspetitions setting up their respective liens and praying an account against the plaintiff, of the proceeds of the sale of said mortgaged property. A copy of the condition and affidavit of the plaintiff's mortgage is as follows:

"The condition of the above conveyance is such, that whereas the said Nesbit has become liable as indorser for said Rooney, in the sum of $300 on a certain promissory note given to the Second National Bank of Toledo, O., and whereas said Rooney is indebted to said Nesbit for money borrowed in certain other sums, and $50 endorsed for to William Rooney by said Nesbit,

Now, if said Mathew Rooney shall save said Nesbit harmless, and shall well and truly pay said sum of money as the same shall fall due, then this conveyance to be void, otherwise in force."

Per

"The State of Ohio, Lucas County, ss. sonally appeared before me, Almon Hall, a Notary Public of said county, Andrew Nesbit, who being by me duly sworn according to law, deposes and says that he is the mortgagee above mentioned, that the above mortgage is bona fide, and that the claim secured by said mortgage as therein set forth, amounts to six hundred dollars, and that the same is just and wholly unpaid. ANDREW NESBIT.

"Sworn to and subscribed before me this 16th

SUPREME COURT OF OHIO.

ANDREW NESBIT

บ.

GEORGE WORTS ET AL.

December 6, 1881.

1. Where an indemnity mortgage is conditioned to save the mortgagee harmless, and to pay the note on which the mortgagee is surety, the protection of the mortgage extends to a liability incurred by the mortgagee jointly with the mortgagor for money borrowed to pay the first note, and with which such note was paid. 2. The affidavit on an indemnity mortgage, under Section 2 of the Act relating to chattel mortgages as amended May 7, 1869, (66 O. L. 345), must show that the mortgage was taken in good faith, to make it valid against creditors. A statement that the claim on which the mortgagee is surety is just and unpaid, is not sufficient.

Error to the District Court of Lucas County. The plaintiff in error, Nesbit, in an action of replevin in the court of common pleas, recovered judgment for the possession of certain personal property under a chattel mortgage executed to him by Mathew Rooney. The defendants in error, Worts & Co., attaching creditors of the mortgaged property, in whose favor judgment had been rendered against Rooney, and Patrick W. Keegan who held a second mortgage on the same

"ALMON HALL.

"Notary Public in and for said County." The following is a copy of the condition and affidavit of the Keegan mortgage:

"The condition of the above conveyance is such, that whereas the said Patrick W. Keegan has heretofore endorsed a certain promissory note given by said Rooney to Schumaker & Egley, for $160.75, and the said Rooney is indebted to the said Keegan in the sum of forty dollars, due as follows, to wit: on the 7th day of November,

1875,

"Now, if the said M. Rooney shall pay said note at maturity, and save said Keegan harmless, and shall also well and truly pay said sum of money as the same shall fall due, then this conveyance to be void; otherwise in force.

"State of Ohio, Lucas County. Personally appeared before me, Patrick W. Keegan, who being duly sworn according to law, deposes and says that the claim described in and secured by said mortgage as therein set forth, amounts to two hundred dollars and cents, and that the same is just and wholly unpaid.

PATRICK W. KEEGAN. "Sworn to and subscribed before me, this 28th

day of October, A. D. 1875.

"BYRON F. RITCHIE,

"Notary Public, Lucas County, Ohio." Both of said mortgages were duly filed for record, and the levying of the attachment of Worts & Co. was subsequent thereto.