Opinion by
Rice, P. J.,This was an action of trespass for the alleged conversion of certain horses in the possession of William B. Jones under an arrangement between him and the plaintiff. Passing the question as to the plaintiff’s property in the animals, was there a conversion ? The evidence upon this subject is within a small compass. The defendant sent to the plaintiff the following written notice:
“You will please take notice that I have bought from Mr. William B. Jones the following horses .... which said Jones claims are his absolute property, and that you have no right, title or interest in or to the same. I hereby notify you that if you interfere with said horses in any way, I will hold you responsible for so doing.”
Afterwards the plaintiff made a demand upon the defendant for the horses, whereupon the defendant replied: “ They are not my horses. If they are yours, why don’t you get an officer and get them back in a proper manner ? ”
The authorities cited by the defendant’s counsel abundantly sustain the propositions, that if the defendant in an action of trover (now trespass) has no possession, actual or constructive, at the time of the demand and refusal and there has previously been no tortious taking or withholding, he is not liable; also *494that the mere assertion of ownership without in any way interfering with the property or the owner’s right to control it is not evidence of a conversion, especially if the defendant withdraws his claim when the owner makes demand.
Judgment affirmed.