The defendant pleaded performance, and upon the issue presented by that plea, the cause was tried before Martin, J., at BERTIE, on the last circuit, when the following facts appeared in the evidence:
The defendant had hired the slave to Amos Doughtry, one of the residuary legatees of his testator, for a year; that during that year Doughtry had sold the slave to one Reddick, who had removed him out of the State. That the defendant had immediately commenced actions against Doughtry and Reddick, and had recovered judgment for the full value of the slave, but had not been able to procure satisfaction, because of their insolvency. That when the sale to Reddick was made, John and Daniel Doughtry, brothers of Amos, and also residuary legatees of Rayner, were present, and did not object to it. That William Doughtry, another brother, and also a residuary legatee, having heard of the intended sale the day before it was made, had advised Reddick against it, but after it had taken place had seen Reddick in the possession of the slave, and was present when the latter had carried him out of the county; and had taken no steps to prevent it, neither did he then object *Page 387 to the sale made by his brother. It was in proof that William and Daniel Doughtry were solvent, and for the relators it was contended that John, Daniel and William by (473) being present at the sale to Reddick, and not objecting to it, or by permitting the slave to be removed, had made themselves equally liable with Amos to the plaintiff for the conversion, and that he had not brought actions against them, he was liable to the relators for the value of the slave.
His Honor instructed the jury that when persons having a title to property were present at the sale thereof, either by a joint owner or by a person who had no title, it was presumptive evidence of an assent to the sale. That if a person after objecting to a sale of property to which he had title, was shortly thereafter to see the property in the act of being removed by the purchasers, under circumstances which enabled him to make known his dissent to the sale, and he neglected to do so, that his assent to it might be inferred from these facts, and that if an assent by John, Daniel or Wm. Doughtry to the sale made by Amos was inferred by the jury, then they were liable for the conversion, and the defendant should have taken steps to subject them.
A verdict was returned for the plaintiff, and the defendant appealed. The plaintiff was permitted to recover in this case on the ground that the defendant might, by an action of trover against John, William and Daniel Doughtry, have recovered the value of the slave General from all or some one of them, and that he negligently omitted to bring such action, whereby the price of said slave has been lost to the relators. The question presented is, could he have recovered if he had brought such an action? In trover, the conversion of the property is the gist of the action, and in general, evidence of some tortious act as essential to a conversion. What will amount to a conversion when proved, is a question of law. In this case it was in evidence that Amos Doughtry, who had hired the slave of the defendant for the term of one year, sold the said slave out and out to Reddick, and that John and Daniel Doughtry, his brothers, who had some equitable interest in the slave, were present at the time and place (474) of sale, but they neither said not did anything relative to the transaction. William was not present at the sale, but had knowledge that Reddick was about to carry the slave away, *Page 388 and did not forbid nor prevent his doing it. Amos having the legal estate in the slave for the year, had, of course, the whole control and management of him for that space of time, John and Daniel being present at the absolute sale of the slave, and neither saying nor doing anything, was evidence either of an admission that they had no title to the slave, or a relinquishment of such title as they might have. An acquiescence and endurance, when acts are done by another which, if wrongfully done, are encroachments, and call for resistance and opposition, are evidence as a tacit admission that such acts could not legally be resisted (2 Starkie, 37, 38). A sale of property by one who has no title, in the presence of the owner, without objection on his part, has been said to estop the latter from impeaching the transaction on the ground of his better title, Bird v.Benton, 13 N.C. 179. Perhaps the more accurate phrase would be, that this conduct is strong evidence of a waiver of such title. But whether it amounts to a technical estoppel, or to a virtual relinquishment, we know of no rule of law which declares that the bare presence of a person, neither doing nor saying anything when another person does an illegal act, makes, of itself, the former a confederate in the illegal act so done by the latter. The owner being present when a sale of his property is made by another, if he makes no objection, and fails to disclose his title, may rightfully be precluded from setting it up afterwards. But the law does not go further, and from that circumstance declare that he makes the sale, particularly if that sale is to be held a tortious and illegal act, as relating to the rights of third and absent persons. We think, from the case stated, that the defendant could not have recovered the value of the slave from either of the three brothers of Amos Doughtry, and that a new trial must be granted.
PER CURIAM. Judgment reversed.
Cited: West v. Tilghman, 31 N.C. 165; Lamb v. Goodwin, 32 N.C. 322.
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