dissenting. It is inferable from the testimony in this case that, prior to the conversion of the property in dispute by the defendant, the transactions the husband had with the railway company were in his individual name. It is true he stated that the real title to the property was in his wife; that he was manager of his wife’s business, and the property was actually in his peaceable and lawful possession. I think it quite evident that the nonsuit was granted in the present case upon the ground that the evidence showed the title to the property was not in the plaintiff but his wife. The entire argumeutof counsel for defendant in error, in endeavoring to uphold' the judgment of the court below granting the nonsuit, is based purely upon thisidea. While the plaintiff testified the lum*772her belonged to his wife, that it was cut on her land, and sawed with her engine and mill, yet he further testified positively and without contradiction: “I had an interest in it by reason of acting as agent for her and having charge of her business.” There is no doubt that at common law an action of trover isrpaintainable in favor of anyone having possession of property against any wrong-doer who deprives him of such possession, and this peaceable possession on the part of the plaintiff, without further proof of title, is amply sufficient to maintain the action. In Dicey on Parties to Actions (2d Am. ed.), 376, it is declared : “ A person who has actual possession of goods has-a. right to possess them against any one who can not show a better title, or, what is the same thing, who can not show that-in interfering with possession of the goods, he is acting under the authority of some one who has a better title than the possessor.” In the case of Jeffries v. Great Western Ry., 25 L. J. 109-110, Lord Campbell, C. J., enters into a discussion of this-question. In his opinion he says he thinks “that the jus tertii could not be set up. . . I conceive the law is, that if a person is peaceably and quietly in possession of a chattel as' his'hwn property, that a person who takes it .from him, having no-good title, is a wrong-doer, and that such person can not defend himself by showing that the chattel is not the property of the plaintiff, but the property of a third person. . . It is of the greatest importance that a man shall not, having no good title of his own to the property, be allowed to seize it, and thereby probably bring about a breach of the peace and occasion great mischief and confusion. . . It is allowed that if an action of trespass is brought by the party in possession, the defendant can not set up the jus tertii, he having no right in himself. I think there is no difference whatever for this purpose between an action of trespass and an action of trover. In both cases the plaintiff rests on his possession of the property; and the question is, whether the person who has no title whatever of his own shall be allowed to show that the plaintiff has not the right of ¡property. The right of property is presumed from the possession; and -is that presumption to be rebutted by evidence on the part of the defendant, a mere stranger and wrong-doer, showing that the plaintiff was not the real owner of the chat*773tel?” See also Rogers v. Spence, 13 M. & W. 579-580. In discussing this right of a mere possessor of property to maintain trover against a wrong-doer, it was decided in that case': “These rights of action are given in respect of the immediate .and present violation of the possession of the bankrupt, independently of his rights of property — they are an extension of that protection which the law throws around the person, and substantial damages may be recovered in respéct of such rights, though no loss or diminution in value of property' may have occurred.” The decision of Lord Campbell in the case of Jeffries v. Great Western Ry., above cited, is extensively quoted in Dicey on Parties to Actions, 378. The same case is also reported in 85 Eng. Com. Law Rep. 802. See also Faulkner v. Brown, 13 Wend. 64; Sutton v. Buck, 2 Taunt. 302.
Our Civil Code, § 3886, clearly adopts that common-law rulé in the following language: “Mere possession of a chattel, if without title, or wrongfully, will give a right of action for' any interference therewith, except against the true owner or the person -wrongfully deprived of possession.” In the case of Harpes v. Harpes, 62 Ga. 394, it is decided: “One from whose hands property of an estate has been wrongfully taken, may bring trover for its recovery against the tortious holder, although there has been no administration.” Chief Justice Warner, delivering the opinion in that case, says: “The mere possession of a chattel, if without title, or wrongfully, will give a right of action for any interference therewith, except as against the true owner, or the person wrongfully deprived of possession.” Iii that case the suit was by a widow of the deceased, to recover possession of a certain described horse. No administration had been granted upon the estate, and it was clear that the plaintiff in that case had no title whatever in the property. It is said in the opinion: “ If the plaintiff had sued for' the horse as a part of the estate of her deceased husband, then a grant of administration would have been necessary to have entitled her to recover; but she declared against the defendant as a wrong-doer, upon her own possession of the property sued for: The dismissal of the plaintiff’s action was error.” This doctrine is recognized in 2 Greenleaf on Evidence, § 637, in his •chapter on trover. In discussing the right of one having'á *774special interest in property to maintain an action of trover for the same, he adds: “'but a lower degree of interest will sometimessuffice, against a stranger; for a mere wrong-doer is not permitted to question the title of a person in the actual possession and custody of the goods, whose possession he has wrongfully invaded.” See also 26 Am. & Eng. Ene. L. 744-8. Theidea; therefore, of the law embodied in the section of the code above cited is evidently to give one who has possession of property,, even if he has wrongful possession of it, a right of action against any one who interferes therewith, unless he should be the true owner, or the person wrongfully deprived of possession. The bare possession of the plaintiff makes out in law title sufficient to recover in such a case; and the wrong-doer is estopped from denying his title by showing a legal title in another. This, however, is a stronger case than a suit by one in wrongful possession of property, for there is no question, under this evidence, that the plaintiff was in its rightful possession. The defendant was guilty of a conversion of the property when it moved the same from where the plaintiff had placed it without his authority or consent.
But it is contended that, the evidence in this case showing that the plaintiff was not the owner of this property, he was not, in contemplation of law, in possession thereof in his own-right, and that his possession -was, therefore, not his own, but really that of his principal. I do not think the word “possession ” in Civil Code, § 3886, will bear any such construction. The term “mere possession” must have some significance, and-I think it necessarily means the party having the actual, manual custody of the property at the time his actual possession thereof is interfered with. It seems from the ingenipus argument of Mr. Justice Cobb in his opinion in this case that he has reached the conclusion that, in order to maintain an action of trover, the possession of the plaintiff, which has been interfered with, must have been coupled with some interest in the property sued for. But that is entirely inconsistent with the language of this section ; for it is therein plainly stated that even if the party, though in possession, is without title, or is in possession wrongfully, he can maintain an action for any interference therewith, except as against the true owner or the person. *775wrongfully deprived of possession. This language,'then, is entirely inconsistent with the idea that such apossession, to authorize the action, must be in a person having some interest in the property. .If that had been the intention of the codifiers, evidently lawyers of their learning would have made it appear in language unmistakable; for instance, by simply adding, that the possession of a chattel, “coupled with an interest in the same,” will give a right of action, etc. They would not have written, “Mere possession of a chattel,” etc., will give a right of action, for the expression, “ without title, or wrongfully,” implies-that the party need not have had any interest whatever in the property in dispute. But apart from this, from the evidence above referred to, it will be seen that this plaintiff, while he did not claim title to the property, did actually claim an interest therein by virtue of the services rendered in the management of his wife’s affairs. It is contended, however, that being the agent of the owner, he was not, in contemplation of law, in possession of the property ; that his possession was the possession of his principal. This proposition is completely answered by the provisions of Civil Code, § 3038, which declares: “ An agent having possession, actual or constructive, of the property of his principal, has a right of action for any interference with that, possession by third parties.” So, if there was ever any doubt about the right of an agent to bring this action against a wrongdoer, it strikes me it is forever set at rest by this provision in the code. In the opinion of- Mr. Justice Cobb, however, it is contended that this section of the code was intended as an embodiment of the common law, and that under the common law an agent had no such right of action even against a wrong-doer, unless the agent’s possession was coupled with an interest he had in the property. In the first place, I do not think this is a correct view of the common law. There can be no doubt that, as a general rule of law, to maintain an action of trover, the plaintiff must have had either a general or special property in the goods seized, and abundant authority can be cited from textbooks, as well as from decisions of courts, which recognizes this general principle. The truth is, actions, of trover in this country are not often based upon a mere possession of the plaintiff of which he has been deprived by a wrong-doer who has no in*776terest whatever in the property. The majority of trover cases are of such a nature that the plaintiff can not recover unless he shows title to or interest in the property sued for. Often is it the case that the defendant never derived any possession from the plaintiff at all, and that he claims a right to the property entirely under a different chain of title. Hence we find manj' authorities announcing this principle in general terms. But there is absolutely nothing in them at all inconsistent with the view I entertain in this case. Take for example some of the eases cited by Mr. Justice Cobb. To support an action of this character he cites a number of authorities to the effect that the plaintiff, at the time of the action, must have either a general or a special property in the personalty.
In Sanford Mfg. Co. v. Wiggins, 14 N. H. 441, 40 Am. Dec. 198, it was decided that replevin can not be maintained unless the plaintiff has, at the time of the taking, either a general or special property in the goods. But that case did not involve any principle whatever touching the right of recovery on actual possession alone against a wrong-doer. That was a general principle in an action of replevin. On p. 199 of that case it will appear that the defendant was a deputy-sheriff, and he set up title in the property in one Hayden, and that the same was seized by defendant as deputy-sheriff by virtue of an attachment against Hayden. The same general principle is declared in 7 Hill, 126, cited by Mr. Justice Cobb. It does not appear from the facts therein that it has any reference whatever to the questions involved in the case at bar. The same general principle is announced in Beckwith v. Philleo, 15 Wis. 223, likewise cited ; but it will appear from the facts in that case on p. 229 that the defendants, instead of taking possession of tl e property involved, to wit, lumber, from the plaintiff, were rightfully in possession of the premises at the time of bringing the suit, and that the cutting of the timber by them, instead of being a wrongful act, was perfectly legitimate under the contract they made by virtue of which they acquired possession of the premises. He also cites 1 Chitty, PI. *137, to the effect that the plaintiff must have a general or special property in the goods at the time the action is commenced, and he also quotes from p. 167 of this work, to the effect that, in. order to *777support the action, the plaintiff must, at the time óf the conversion, “have had a complete property, either general or special, in the chattel.” But in another place in his opinion he adverts to p. *170 of the same work where Mr. Chitty lays down the general rule that “the bare possession of goods without any strict legal title confers a right of action against a mere wrongdoer, having no right, and not clothed with any authority' from the real owner.” In the same connection, and on the' same page, the author adds: “The only exception which appears to exist is in the case of a mere servant acting professedly as such, and having only the custody of goods.” He also quotes from 2 Greenleaf, Ev. (15th ed.) § 561, as follows: “ A mere servant, or a depositary for safe custody, has not such property as will support this action, his possession being that of the master or bailor.” The writer has above quoted from the same author where, further on in the same work, he takes quite a different view of a right of action against a mere wrong-doer, who is not permitted to question the title of a person in the actual possession and custody of goods whose possession he has wrongfully invaded. Great reliance is placed by Mr. Justice Cobb upon the decision of this court in the case of Lockhart v. W. & A. R. R., 73 Ga. 472. Upon a careful review of that decision and the facts in that case, I can not see that it in the least sustains the view of the majority of this court. That was not an action of trover, but an action for damages resulting from an injury-done to an oil-painting by the defendant. Civil Code, § 3886, has no application whatever to that case. It clearly appears that the defendantdid not wrongfully get possession of the property from the plaintiff. On the contrary the property that was damaged was received by the defendant for transportation. It appears in the case that'the plaintiff was only a borrower, and acquired no title in the picture loaned. She brought suit against the defendant, not because of any unlawful possession of the picture by it, but because of injury it sustained while in its lawful possession. It is there expressly recognized that the carrier can not dispute the title of the party delivering goods for transportation, either by setting up title in himself or in 'a third person, which is not being enforced against him; but, says the court on p. 474, “that is not this case; he sets up no *778adverse claim; does not refuse to deliver the property to the consignee.” In such a case where the plaintiff had no interest iii or title to the property which had been damaged, she, of course, had no right of action, for she had not been damaged. 1 think this is really authority to sustain my view; for it is intimated in the opinion that if the railroad company had unlawfully deprived the plaintiff of possession of the property, she could have maintained an action against it, although she had no title to same.
I fail to find that any of the authorities cited by Mr. Justice Cobb sustain his theory of what the common law is, that possession of an agent of his principal’s chattels will not enable him to maintain an action against a wrong-doer who has unlawfully deprived him of such possession, because his possession is in law possession of the principal. As a general rule an agent can not maintain an action in trover for the recovery of his principal’s property; but that rule does not apply when he is in possession of the principal’s property, and has been deprived thereof by the wrongful act of a person who has no interest whatever in that property. To say that Civil Code, § 3038, refers to an agent not only who has possession, actual or constructive, of the property of his principal, but refers to one who has an interest in the property, would be giving it a construction which was evidently never contemplated by the codifiers. If the agent’s right of action be based upon the fact that he has an interest in the property, then he neces- , sarily occupies some other relation than that of mere agent. If that is the only thing that gives him a right to sue, then his possession -is not that of an agent, but of an owner, and he had the right to protect his interest in the property against a wrong-doer, independently either of section 3038 or 3886 of the Civil Code. ' Chitty, the authority relied upon by Mr. Justice • Cobb, recognizes but one exception which even appears to exist, and that is where the possession is that of a mere servant. I know of no authority that recognizes the possession of an agent as an exception. But suppose it did, and at common law an agent did not have a right of action of this sort, then . manifestly, under our Civil Code, that principle of the common law has been changed. Suppose the word “ servant” had *779been used instead of the word “agent” in section 3038, no one could contend that the servant could not bring this action. If, therefore, under the common law, mere possession by an agent of his principal’s property ■ will give him no right of action against a wrong-doer for interference with such possession, then that section of the Civil Code (3038) changes the-common law by declaring exactly the contrary.
It is true that the main purpose of the codifiers was to embody in the code of laws of this State, not only the statutes, but the common law in force, and also the decisions of this court, and that-in case of a want of absolute clearness as to what a seer tion might mean, or in case of ambiguity, if it relates to a principle of the common law, a determination of what the common law on the subject is is entirely proper, and often of great aid in arriving at the true intent of the codifiers, and of the action of the legislaturedn adopting their work. But when we find' in the code a provision as clear and unmistakable in its meaning-as is embraced in section 3038, the invariable rule of this court has been to treat it as law, although it may never have been law before the adoption of the code. Now. that section says, “an agent having possession, actual or constructive." Of what?' Of the property of his principal. It necessarily implies, so far as the absolute legal title is concerned, that the principal alonéis the holder thereof; and yet that section gives the agent in possession a right of action for any interference with that possession by third persons. What possession? Manifestly and unquestionably, the possession he holds for his principal. If the agent has an interest in the property himself, he would have a right of action, not by virtue of his possession as agent of his principal, but by virtue of his possession in an entirely different capacity. The effect, then, of the construction of the-majority of the court, as I conceive it, is to change the clear and unmistakable meaning of the language employed in the code, and to add to its words a thought that simply amounts to its absolute repeal. For the above reasons I feel constrained to differ from the views of the majority of my brethren, and think that the court below erred in granting a nonsuit.