was by the laws of that territory 527 a general assignment for creditors; 5. Want of capacity in plaintiff to maintain this suit; 6. Because the transfer of the goods by Goldberg to plaintiff was fraudulent and with intent to hinder and delay creditors.

The reply denied all new matter and again prayed judgment. Among other instructions plaintiff prayed the court for the following:

“9. The jury are instructed that if the plaintiff delivered the goods in controversy to the Atchison, Topeka and Santa Fe Railroad Company, to be transported to Chicago, Illinois, and while en route to Chicago the same were taken from said company under a writ of attachment, issued at the instance and served under the direction of defendant, and that said attachment suit was dismissed, and that the attorney for said railroad company assigned the lien of said railroad company on said goods for freight and made said assignment to one Roy, if the jury find that said Roy was acting for the said defendant in taking said assignment, and that the said defendant, in the name of said Roy, took possession of said goods at Kansas City, Missouri, then they must find for plaintiff, notwithstanding that said Swofford Brothers Dry Goods Company subsequently caused said goods to be attached.

"10. The jury are instructed that, if said Swofford Brothers attached the said goods at Kansas City, Missouri, and thereafter released their attachment and then sent said goods over into the state of Kansas, of which state the said Goldberg was a nonresident, for the purpose of having the same attached there, the courts of the state of Kansas acquired no jurisdiction over the said goods, and said attachments so issued in the state of Kansas are void, and the jury will entirely disregard them.”

1. Prima facie, plaintiff was and is entitled to the possession of the goods which she shipped from Raton, New Mexico, to Chicago, or their value.

528 Whether bona fide, or with intent to hinder, defeat or delay creditors, the evidence unquestionably shows possession in Mrs. Rosencranz at Raton, New Mexico, and the receipt for her of the goods by the Santa Fe railroad to be transported to Chicago and to be redelivered there to her. By virtue of her possession she had the right to recover the goods or their value from every person except the right owner.

This has been the common law since the decision in Armory v. Delamarie, 1 Strange, 505, wherein it was held that the finder of a jewel was entitled to bring trover against one who, having taken the jewel for examination, refused to return it.

In the language of Lord Campbell: "The law is that a person possessed of goods as his property has a good title as against every stranger, and that one who takes them from him, having no title in himself, is a wrongdoer, and cannot defend himself by showing that there was title in some third person; for against a wrongdoer possession is a title. The law is so stated by the very learned annotator in note to Wilbraham v. Snow, 2 Wm. Saunds 47b, and I think it most reasonable law, and essential for the interests of society, that peaceable possession should not be disturbed by wrongdoers. It is not disputed that the jus tertii cannot be set up as a defense to an action of trespass for disturbing the possession. In this respect I see no difference between trespass and trover; for in truth the presumption of law is that the person who has the possession has the property. Can that presumption be rebutted by evidence that the property was in a third person, when offered as a defense by one who admits that he himself had no title and was a wrongdoer when he converted the goods? I am of opinion that this can not be done": Jefferies v. Great Western Ry. Co., 5 El. & B., 85 Eng. Com. L. 802.

Judge Cooley in his work on Torts, second edition, page 520, marginal page 445, after reviewing various cases says: 529 "When, therefore, it is said that the plaintiff must have had, at the time of the conversation, the right to the property, and also a right of possession, nothing more can be intended than this: that the right of which he complains he has been deprived must have been either a right actually in possession, or a right immediately to take possession": Cobbey on Replevin, sec. 786; Vanzant v. Hunter, 1 Mo. 71; Stowell v. Otis, 71 N. Y. 36; Knapp v. Winchester, 11 Vt. 351; Bartlett v. Hoyt, 29 N. H. 317; Guttner v. Pacific Steam etc. Co., 96 Fed. 619.

Plaintiff having possession of the goods, the law is that one who has wrongfully obtained the goods from her cannot defeat her action by showing title in another without connecting himself with the right of such person. How has defendant rebutted or attempted to show title out of plaintiff?

It is clear that neither by the attachment suit commenced in the circuit court of Johnson county, Kansas, nor by the

attachment sued out in the circuit court of Jackson county, Missouri, was the title of plaintiff in any manner affected, because neither was prosecuted to judgment. The only question, then, is as to the effect of defendant's judgment in the Wyandotte county common pleas court. This leads us to inquire what jurisdiction the common pleas court acquired over this property as between defendant and plaintiff. Plaintiff, being the shipper and consignee also of the goods, was prima facie the owner thereof, but defendant had the right to attach them if it could establish that the sale and transfer to plaintiff by Goldberg was fraudulent as against defendant, and when the action of defendant was commenced in Kansas City, Missouri, and the goods seized under the writ, the circuit court of Jackson county unquestionably acquired jurisdiction over them, but when defendant by means of attachment 530 had brought the goods within the jurisdiction of the circuit court of Jackson county, and then induced the sheriff of Jackson county to turn them over to its agent, it is absolutely clear it had no legal possession. The sheriff had no right to turn them over to defendant. He held them by virtue of a writ, and subject to the lawful orders and judgments of the circuit court of Jackson county, and not as defendant might direct. But as if to remove the last semblance of authority for holding the goods, defendant dismissed its attachment under and by virtue of which the possession was acquired from plaintiff's carrier, and thus prior to the removal of the goods to Kansas defendant was in possession of plaintiff's goods without the slightest justification in law. It was as to plaintiff a naked trespasser in possession by virtue of an abuse of the state's writ of attachment. Having obtained the possession and dismissed its writ it had neither title nor color of right to retain the possession, and if plaintiff had brought replevin or sued in conversion before the removal of the goods to Kansas and after the dismissal of the attachment suit brought in Jackson county, it is too plain for discussion that defendant would have had no defense whatever to the action. Whatever efficacy there might have been in the writ ceased when it was dismissed, and the officer who had levied it, instead of restoring the goods to the party from whom he took them, had turned it over to defendant who had no right to them. Prima facie, the officer himself having a writ directed against Goldberg alone which he levied on property in plaintiff's possession, was a trespasser: State v. Hope, 88 Mo. 435. And when at the instance of de

fendant, he turned the goods over to defendant, the latter also was a trespasser. Conceding that defendant was a creditor of Goldberg, it would have had no right, merely because it was his creditor and that he was attempting to defraud it, to seize his property and hold it without any lawful process. How much less could it 531 justify its seizure of property of which Goldberg had no possession and which was in the possession of plaintiff. As said in Mississippi Mills v. Meyer & Co., 83 Tex. 438, 18 S. W. 749: "The fact that a naked trespasser is the creditor of the owner of the goods, or that the plaintiff's title may be founded in fraud, will not justify the trespass": Hudson v. Willis, 73 Tex. 258, 11 S. W. 273.

Such was the condition of affairs when defendant removed the property out of this state into Kansas in order that the Kansas writ of attachment could be levied upon it. As already said, it seems the Johnson county attachment was levied on the goods in Wyandotte county. For two reasons defendant cannot avail itself of that attachment by way of defense: 1. Because this attachment was, like the Missouri attachment, dismissed without having even gone to judgment and without service on Goldberg; 2. For the reason that defendant being in possession of the goods in Missouri purely and simply as a trespasser and having taken them into Kansas in order that the writ of attachment in that state could be levied on them, the levy conferred no jurisdiction, because it was a fraud in law, whatever the intention of defendant was, and this defendant cannot avail itself of its wrongful act to confer jurisdiction on the courts of Kansas, and then plead their process as a defense to plaintiff's action for their original and continuing trespass and wrongful conversion.

tas.

However honest and valid its claim against Goldberg, and this we do not for a moment question, no valid legal sequestration could follow its illegal act in thus taking the property out of this state and having it attached for its benefit in KanThe courts cannot and will not countenance such a method of acquiring jurisdiction and the plaintiff is not estopped to question the jurisdiction of a court of a foreign state obtained in such manner and by such means. But as we have said, the levy in the Johnson county case was abandoned and it constitutes no defense. This leaves but the Wyandotte attachment as a defense. This last attachment is pervaded with the same vice as that which preceded it. The

532

property was within the local jurisdiction of the Wyandotte common pleas court, solely and wholly as the result of the original trespass of defendant, and this subsequent attachment did not and could not purge it of the original wrong in unlawfully taking the goods out of this state into Kansas in order to confer a jurisdiction which that court otherwise would not have had over it. The proceeding was conducted at the instance of defendant, and we think that it is open to plaintiff's attack on it for the same reasons that must govern the Johnson county attachment. The stream cannot rise higher than its source: Hoes v. New York etc. R. R. Co., 173 N. Y. 435, 66 N. E. 119.

It is apparent, then, if we are right in holding that the Kansas courts did not and could not acquire jurisdiction over plaintiff's goods in favor of defendant by illegally taking them out of this state into Kansas in order that defendant's attachment in that state might be levied upon them, defendant had no defense to plaintiff's action by reason of any attachment or judgment liens. Having no title in itself and no lien, can it be heard to justify its seizure and possession of plaintiff's goods by asserting or showing that the sale from Goldberg to plaintiff was fraudulent as to Goldberg's creditors, or in other words, in such case can defendant show title in a third person as a defense? We think the great weight of authority is that it cannot. Cobbey on Replevin, second edition, section 786, lays down the rule that: "A defendant who has wrongfully taken possession of the property cannot set up as a defense that other persons who are not defendants have a lien on the property which entitles them to its possession."

And it was held in Mississippi Mills v. Meyer & Co., 83 Tex. 438, 18 S. W. 748, that "the fact that a naked trespasser is a creditor of the owner of the goods, or that the plaintiff's title may be founded in fraud, will not justify the 533 trespass." This was the rule announced by Lord Campbell in Jefferies v. Great Western Ry. Co., 5 El. & B., 85 Eng. Com. L. 802; Hudson v. Willis & Bro., 73 Tex. 256, 11 S. W. 273.

Defendant was in no position to avail itself of the fraud of Goldberg, if any, in attempting to defeat his creditors, as it had not acquired Goldberg's title in any lawful manner, but was a naked trespasser in the circumstances, and has not connected itself with Goldberg's possession or title in any lawful

manner.