putting it beyond his power to return the goods upon the payment of the debt, A may maintain trover without tendering the amount of the debt.s

The English Courts, however, have decided that there is no conversion in such cases, at least until the owner has tendered the amount of the debt;" if a return of the property is refused upon such a tender, doubtless an action of trover could be maintained.

20. Innocent purchasers.-It has already been pointed out that if acts of dominion are exercised by the defendant over the goods of the plaintiff, it is not material that the defendant acted innocently and even with reasonable grounds to believe that he was the owner, or that there were no adverse rights to the goods; in other words, that bad faith was not an essential element of the tort.10 This is true if the plaintiff is the owner of the goods or otherwise is entitled to possession of them, and if the defendant's acts amount to a conversion.

The fact, however, that the defendant is an innocent purchaser may, and in many cases does, result in a title in him which is good against the plaintiff, though as against the defendant's vendor, the plaintiff was entitled to the goods and to immediate possession of them. For example: A enters into a contract with B to sell to B certain goods, induced by false and fraudulent representations by B, and

8 Austin v. Vanderbilt, 48 Oreg. 206, 85 Pac. 519; Mullen v. Quinlan & Co., 195 N. Y. 109, 87 N. E. 1078.

Donald v. Suckling, L. R. 1 Q. B. 585 (Eng.). Compare Schaaf v. Fries, 90 Mo. App. 111. Halliday v. Holgate, L. R. 3 Exch. 299 (Eng.).

10 §§ 13, 14. Hollins v. Fowler, L. R. 7 H. L. 757 (Eng.), Blackburn, J.

the goods are delivered to B. This is a wrongful act of dominion by B over A's goods. A may avoid the sale, replevy the goods, or sue B in trover." Before A takes action against B, however, B sells and delivers the goods to C, who purchases innocently and in ignorance of the fraud practiced by B on A; C is the owner of the goods, and is not liable to A in trover.12

Whether, then, the fact of innocent purchase is or is not material turns upon the question whether by such purchase the buyer acquired a better title than his vendor had, that is, whether the defendant acquired a title, good as against the plaintiff; for if he did he is not guilty of conversion of the plaintiff's goods.

21. Same subject-Purchase from one having defeasible title.-Where the defendant's vendor had a title, even though his title was defeasible as to the plaintiff, that is, where the plaintiff might defeat that title for any reason, if the defendant purchased innocently and in ignorance of the facts enabling the plaintiff to defeat the title in the defendant's vendor, the defendant thereby acquires a good title.

If, however, the defendant's vendor had no title which he could convey, the defendant's purchase, though innocent, vests him with no title as against

11 Thurston v. Blanchard, 22 Pick. 18 (Mass.).

12 Rowley v. Bigelow, 12 Pick. 307 (Mass.); Hoffman v. Noble, 6 Met. 68 (Mass.); Sargent v. Gile, 8 N. H. 325, LEADING ILLUSTRATIVE CASES; Ashton v. Allen, 70 N. J. L. 117, LEADING ILLUSTRATIVE CASES; White v. Garden, 10 C. B. 919 (Eng.). (In this case A was held entitled to maintain trover against C who had retaken the goods from A).

14

the true owner, and if followed by assumption of possession, is a conversion. For example: In the case of Rowley v. Bigelow,1 the plaintiff's vendee had obtained title under a fraudulent sale and the plaintiff might have disregarded the sale and replevied the goods or have sued his vendee in trover; 14 but the defendant purchased innocently and thereby acquired a better title than his vendor had, that is, he acquired a title good as against the plaintiff. In Ashton v. Allen15 an unknown person acquired possession of the plaintiff's goods by fraudulently representing that he was Bowman; he acquired no title, however, of any sort,-none was bargained for or conveyed. The defendant purchased innocently from the unknown, but was held liable to the plaintiff in trover, on the ground that the unknown had no title whatever and hence could convey none.18 The three cases reported together under the title of Edmunds v. The Merchants Despatch Co., illustrate the distinction under discussion. In two of the cases, an impostor representing himself to be a brother of Edward Pape, of Dayton, Ohio, purporting to purchase goods from the plaintiffs for Pape, procured the plaintiffs to ship the goods by the defendant company addressed to Edward Pape; in the third case, he represented that he was Edward Pape, and induced the plaintiff to sell him goods by this fraudu

13 12 Pick. 307 (Mass.).

17

14 Thurston v. Blanchard, 22 Pick. 18 (Mass.).

15 70 N. J. L. 117, LEADING Illustrative Cases.

16 Compare Cundy v. Lindsay, L. R. 3 App. Cas. 459 (Eng.); Hollins v. Fowler, L. R. 7 H. L. 757 (Eng.).

17 135 Mass. 283, LEADING ILLUSTRATIVE CASES.

lent representation, and to ship the goods as in the other two cases. The defendant delivered all the goods to the impostor, and the plaintiffs brought suit in trover for conversion, on the ground of a misdelivery by the defendant carrier. In the first two cases the defendant was held liable, and in the third case it was held not liable, though the defendant was innocent of intentional wrongdoing in all the cases, and had been imposed upon no less than the plaintiffs themselves had been. In the first two cases, however, the impostor acquired no title, nor did any pass to Pape, and consequently the carrier had wrongly delivered the goods.18 In the third case the title to the goods did pass to the impostor, though the seller could defeat that title because of the fraud; accordingly, the carrier (defendant) had delivered the goods to him who had the title. Hence, it was decided by the court that there was no misdelivery.19

22. Same subject-Conditional vendees.-The same principle underlies the cases of purchases from conditional vendees. If A purchases from B who has possession of C's goods under a contract calling for the performance of a condition precedent before title shall pass, in violation of which B sells to A, A acquires no title against C, and his purchase, though innocent, followed by assumption of possession, is a

18 This is the same principle as that upon which Ashton v. Allen, 70 N. J. L. 117, was decided.

19 That is, the carrier, having exercised what would otherwise be an act of conversion, is protected because the person to whom it delivered had a title, and, although the title was a defective one, the carrier is not liable, if the act was done in ignorance of the defect, in like manner as though the carrier had purchased innocently from the impostor.

conversion.20 If, however, A purchases from B who has purchased from C, under a contract providing that title shall pass to B but shall revest in C upon non-performance by B of a condition subsequent, if A's purchase is innocent and in ignorance of B's failure to perform, A is not liable in trover to C; in fact, A's title is good against C.21 In the former case B had no title at the time of the sale to A; in the latter case, B had title though defeasible, and the sale to an innocent purchaser vested title free of the condition.

23. Same subject-Attaching creditors.-Generally speaking, an attaching creditor who attaches goods as those of a fraudulent vendee does not stand in the same position as an innocent purchaser. For example: A by fraud procures a sale of goods from B, and while the goods are in the possession of A they are seized on attachment by C, a creditor of A. C is liable in conversion to B.22 If, however, C gives credit to A on the strength of A's possession of the goods and in ignorance of the fraud, C's seizure of the goods on attachment is not a conversion as to B.23

24. Transactions in course of business.-The question how far an innocent defendant, who has dealt with the plaintiff's goods, is protected from liability in conversion by reason of the fact that

20 § 18 and cases cited.

21 Holbrook v. Armstrong, 10 Me. 31; Sargent v. Gile, 8 N. H. 325, LEADING ILLUSTRATIVE CASES.

22 Bussing v. Rice, 2 Cush. 48 (Mass.); Farwell v. Hanchett, 120 Ill. 573; Acker v. Campbell, 23 Wend. 372 (N. Y.); Thompson v. Rose, 16 Conn. 71. 23 Thompson v. Rose, 16 Conn. 71.