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"Chicago, Ill., 10-5-'95. "Messrs. Swofford Bros., Kansas City, Mo.
“Gentlemen: Yours of recent date was received by me. Replying to same, I will say that the statement made to you in August last by Herman Goldberg of Raton, N. M., regarding the indebtedness to me of $2,100, was correct. "Yours respectfully,
"B. ROSENCRANZ." The plaintiff offered evidence that afterward on the third day of November, 1895, the plaintiff through her husband J. Rosencranz, acting as her agent, delivered the goods for whose conversion this action was commenced, to the Atchison, Topeka and Santa Fe Railroad Company, a common carrier engaged in transporting merchandise from Raton, New Mexico, to Chicago, Illinois, and received a bill of lading in her favor in due form, whereby said company agreed to deliver said goods to her in Chicago, Illinois; that Kansas City, Missouri, is on the line of said railroad between Raton and Chicago. That the de fendant, Swofford Brothers, on the 7th day of November, 1895, sued out an attachment for $1,385.80 in the circuit court of Jackson 525 county, Missouri, at Kansas City, in favor of said Swofford Brothers Dry Goods Company and against H. Goldberg, on the ground of nonresidence, and under said writ the said defendant directed the sheriff of Jackson county, Missouri, to attach and take from the possession of the said railroad company, all of the goods described in the petition, and said sheriff, on the eighth day of November, 1895, attached and took said goods out of the possession of said railroad company in Kansas City, Missouri. That afterward, on the ninth day of November, 1895, said Swofford Brothers Dry Goods Company dismissed its said attachment suit, and on the 11th of November, 1895, said sheriff released said goods. No other proceedings were had against said goods in Jackson county, Missouri. By direction of the defendant, the sheriff turned the goods over to H. Leftwitch, an employé of defendant, and Joseph H. Roy, an employé of defendant's attorneys.
Prior to the commencement of the suit in Jackson county, Missouri, the Swofford Brothers Dry Goods Company, having learned of their shipment from Raton, brought an action by attachment in Johnson county, Kansas, and summoned the railroad company as garnishee. The sheriff of Johnson county, Kansas, did not succeed in seizing the goods, and it was learned they had gone into Kansas City, Missouri, where,
as already said, they were levied on by the sheriff of Jackson county, Missouri, and removed from the cars.
It seems this seizure aroused the railroad company, and the Swofford Brothers being anxious to avoid controversy with the railroad, which had a lien for its freight charges, it was stipulated that the railroad should receive its earned freight. Thereupon Joseph H. Roy took an assignment from the railroad company of its claim for freight lien on the goods, and the goods were then delivered to Mr. Leftwitch, an employé of defendant, Swofford Brothers, under the 526 direction of their attorneys. After that the suit in Jackson county, Missouri, was dismissed.
Thereupon by direction of Swofford Brothers, or their attorneys, the goods were then placed in wagons and driven across the state line into Kansas.
The money which was paid by Roy to satisfy the freight bill was paid by Swofford Brothers. When they reached Kansas, Cummins, the deputy sheriff of Wyandotte county, Kansas, under the direction of Swofford Brothers, levied upon the goods. They were marked B. Rosencranz, Chicago, Illinois. This levy was made under a writ of attachment issued by the clerk of Johnson county, Kansas, in the suit commenced there as already noted. It seems no publication was made in this suit within the forty days required by the laws of Kansas, and subsequently this suit, like the one in Jackson county, Missouri, was also dismissed, and no further steps taken in it, but prior to its dismissal and while the goods were still in the hands of the sheriff of Wyandotte county, Kansas, Swofford Brothers Dry Goods Company, the defendant herein, brought still another action in attachment in the common pleas court of Wyandotte county, Kansas, against Goldberg, and by its direction the sheriff of that county levied upon the same goods then in his hands. Constructive service by publication was then obtained in this last-mentioned case, and judgment taken, and the goods sold, and bought in by defendant. There was no appearance by Goldberg or Mrs. Rosencranz in any of the cases. Thereupon on January 23, 1896, plaintiff brought this her action against Swofford Brothers for conversion. The defendant in its answer pleaded : 1. A general denial; 2. An estoppel on the part of plaintiff, by reason of her agreement not to enforce her debt in preference to Goldberg's other creditors; 3. A lien for the amount of the freight paid by defendant; 4. That the transfer by Goldberg to plaintiff in New Mexico
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 judg. ment. 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 y. Otis, 71 N. Y. 36; Knapp v. Winchester, 11 Vt. 351; Bartlett v. Hoyt, 29 N. H. 317; Guttner y, 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 630 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 ty 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