The title to the mule passed to Hodges, under the contract in writing given in evidence, subject to be divested on the payment by the vendors of the sum expressed, on or before the 1st October, 1875. Until that condition was fulfilled, Hodges was the absolute owner, entitled to possession, and if the vendors were permitted to remain in possession, they were merely tenants at his will. If a bona fide purchaser from Cottle would have been protected against the title of Hodges, the appellant does not stand in that position, and cannot claim the protection. Whether he had notice of the sale to Hodges is unimportant. He paid or parted with nothing of value for the mule, and is the mere voluntary donee of Cottle, having no other or greater right than he had. The claim of a greater right, and the assumption of ownership, using the mule as if he was owner, was illegal, and a conversion for which trover will lie. No demand was necessary, for his possession originated tortiously, and was adverse to that of the true owner.
The first instruction requested by the appellant was properly refused. The second may state the law correctly in a proper case; but in this case it was properly refused.
Affirmed.