purported to vest the property in them; and they by the purchase undertook to control it as their own property. This was an assumption of power over it inconsistent with the rights of the plaintiff": Hyde v. Noble, supra. The possession of the defendants was not a mere custody, without reference to the question of title or ownership of the property, as in the case of a common carrier who receives property from one not rightfully entitled to the possession and in ignorance of the title of the true owner; but it was a possession given and taken in pursuance of the contract of sale, and on the assumption of ownership, and the right to exercise dominion and control over it. In such case, good faith, or the absence of evil intent, can not infuse validity into the transaction, nor make a possession rightful which is exercised in derogation of the rights of the true owner to control and enjoy his property. Nor is the plaintiff "bound to tender an issue, or litigate a question upon the grievance or innocence of a party who contests his right to the property," and by his evidence shows that he claimed it adversely to him.

The judgment must be affirmed.

CAVEAT EMPTOR IS RULE ON SALE OF CHATTELS: Brown v. Gray, 72 Am. Dec. 563, and note 566; note to Scott v. Hix, 62 Id. 460.

MERE POSSESSION OF ANOTHER'S PROPERTY is not such evidence of ownership or authority to sell that third persons have the right, as against the owner, to rely thereon: Spraights v. Hawley, 100 Am. Dec. 452, and note 458; Johnson v. Frisbie, 96 Id. 508; Fawcett v. Osborn, 83 Id. 278, note 285. CONVERSION TO SUSTAIN TROVER, WHAT CONSTITUTES: Tinker v. Morrill, 94 Am. Dec. 345, and note 349; Gilmore v. Newton, 85 Id. 749, and note; Woodman v. Hubbard, 57 Id. 310, and note.

MOTIVE IN CONVERSION is only material to resist recovery of exemplary damages: Hacker v. Dement, 52 Am. Dec. 670, note 680.

NO DEMAND IS NECESSARY where the taking is actual and tortious: Gil more v. Newton, 85 Am. Dec. 749, note 751; but it is where the possession was first gained legally: Buel v. Pumphrey, 56 Id. 714, and note; and the same rule prevails in replevin: Oleson v. Merrill, 91 Id. 429, note 432; Buttles v. Haughwout, 89 Id. 401; Trudo v. Anderson, 81 Id. 795.

PURCHASE IN GOOD FAITH, FROM ONE who has no right to sell, is not a good defense to an action for conversion: Hills v. Snell, 6 Am. Rep. 216. WHATEVER WILL SUPPORT REPLEVIN WILL SUPPORT TROVER: Oleson v. Merrill, 91 Am. Dec. 429, and note 432.

PURCHASER FROM AGENT OF OWNER WILL BE PROTECTED: Carmichael v. Buck, 70 Am. Dec. 226, note 230.

PURCHASER FROM ONE WITHOUT TITLE or authority to sell gets no title: Saltus v. Everett, 32 Am. Dec. 541. The vendee can get no better title than the vendor possesses: Agnew v. Johnson, 62 Id. 303, note 307.

OWNER OF CHATTEL CANNOT BE DIVESTED OF TITLE WITHOUT HIS CONSENT. It is a general rule of law, sustained by an unvarying course of decisions, that the owner of property cannot be divested of it except by his consent or by legal process: Williams v. Merle, 11 Wend. 80; 25 Am. Dec. 604, and note 606; Quinn v. Davis, 78 Pa. St. 15, 18; Ventress v. Smith, 10 Pet. 161, 174; or in other words, the vendor of a chattel can transfer no more than the interest which he lawfully has therein: Burton v. Curyea, 40 Ill. 320; 89 Am. Dec. 350, and note 361; Bradeen v. Brooks, 22 Me. 463; Agnew v. Johnson, 22 Pa. St. 471; 62 Am. Dec. 303; Ripley v. Dolbier, 18 Me. 382; McMahon v. Sloan, 12 Pa. St. 229; 51 Am. Dec. 601, and note 607. Therefore a purchaser from one having no title gets none, for he who has no title can convey none, and a bad title is not made good by the ignorance of the purchaser of its defects; nor his want of knowledge of a better title: Barnes v. Meeds, 8 Ired. 292; 49 Am. Dec. 390; Williamson v. Williamson, 3 Smedes & M. 715; 41 Am. Dec. 636; Fawcett v. Osborn, 32 Ill. 411; 83 Am. Dec. 278, and note 285. Nor by the fact that he is an honest bona fide purchaser: Saltus v. Everett, 20 Wend. 267; 32 Am. Dec. 541; Williams v. Merle, 11 Wend. 80; 25 Am. Dec. 604, and note 606, 615. This rule might perhaps be less broadly stated, and be extended in its application to those not only having no title, but also to those having no authority to sell, although these latter are included in several cases among the exceptions to the general rule: Williams v. Merle, 11 Wend. 80; 25 Am. Dec. 604, and note 606; Saltus v. Everett, 20 Wend. 267; 32 Am. Dec. 541, and note 554, and cases herein, post. This rule, however, obtains only to the advantage of the rightful owner: Ventress v. Smith, 10 Pet. 161, 174, and cases cited herein, ante.

POSSESSION ONLY PRIMA FACIE EVIDENCE OF TITLE. - Possession of personal property is prima facie evidence of title, good as against everybody but the rightful owner; merely parting with the possession by the owner affords no conclusive evidence of a change of title: Magee v. Scott, 9 Cush. 148; 55 Am. Dec. 49, and note 52; Avery v. Clemons, 18 Conn. 306; 46 Am. Dec. 323, and note 325; Wright v. Solomon, 19 Cal. 64; 79 Am. Dec. 196, and note 203; Bergen v. Riggs, 34 Ill. 170; 85 Am. Dec. 304; Spraights v. Hawley, 39 N. Y. 441; 100 Am. Dec. 452, and note 458; Dick v. Cooper, 24 Pa. St. 217; 64 Am. Dec. 652; Fawcett v. Osborn, 32 Ill. 411; 83 Am. Dec. 278, and note 285. The rule being that the mere possession of a chattel is not, as in case of negotiable paper or money, assurance of title or authority to dispose of it, and he who assumes to deal or intermeddle with personal property not his own must see to it that he has a warrant therefor from some one who is authorized to give it: Spraights v. Hawley, 39 N. Y. 441; 100 Am. Dec. 452, and note 458. Therefore, as was said in Ketchum v. Brennan, 53 Miss. 596, 607, “a buyer must beware of purchasing from one who has not title, possession is not title. It is prima facie evidence of title, but nothing more. A buyer should not content himself with prima facie title. It cannot avail him as against the title. It will until the presumption arising from possession is removed, but when the prima facie title is destroyed by proof that, while title seemed to be in the possessor, it was in truth in another, the prima facie title must yield to the actual title. A buyer may trust to appearances; but if they prove false and delusive, he takes the risk, and must abide the result. . . . . Whether the possessor of property has borrowed it or hired it or purchased it, and what is the nature and extent of his right to it, should be ascertained by him who proposes to deal with him as to such property," since the true owner may follow his property and reclaim it wherever found: Fawcett v. Osborn, 32 Ill. 411; 83 Am. Dec. 278. So the mere possession of

a mortgaged chattel by the mortgagor is not such evidence of ownership or authority to sell the property as will protect, against the claim of the mortgagee, one who, as agent of the mortgagor, sells the property, and pays the proceeds in good faith to his principal, in the belief that he was the true owner: Spraights v. Hawley, 39 N. Y. 441; 100 Am. Dec. 452; and the bare possession of a horse by an army officer with the consent of the quartermaster having charge of horses belonging to the government, and the sale of such horse by him to another, although a bona fide purchaser, are not sufficient to pass title to the purchaser: Johnson v. Frisbie, 29 Md. 76; 96 Am. Dec. 508.

NO DISTINCTION BETWEEN GOVERNMENT SALE AND PRIVATE SALE AS TO CONFERRING TITLE. Where a stolen horse was sold at a private government sale, it was held that the vendee acquired no title as against the rightful owner; there being no distinction in this respect between a public sale by the government and a sale by a private individual: Black v. Jones, 64 N. C. 318, 320; and see also Wilson v. Crocket, 43 Mo. 216; 97 Am. Dec. 389.

WHERE GOODS ARE LOST OR STOLEN OR OBTAINED BY FINDING. - Loss by accident, theft, or robbery does not divest the owner of goods of their title, nor give a bona fide purchaser of them a title: Saltus v. Everett, 20 Wend. 267; 32 Am. Dec. 541, 546; but see Jones v. Mellis, 41 Ill. 482; 89 Am. Dec. 389, and note 391. Since no title can pass through a thief, those who buy of him should be compelled to give up the property, unless they have converted it, when they should be held for its value: Koch v. Branch, 44 Mo. 542; 100 Am. Dec. 324. And it makes no difference as to a purchaser from a thief of stolen goods, whether the larceny be larceny at the common law, or larceny as defined by the modern English and American authorities; the value of the goods may be recovered by the owner without regard to the innocence or good faith of the parties making the purchase: Breckenridge v. McAfee, 54 Ind. 141, 148. So the finding of goods, or the obtaining of them by any other means, enables a vendor of personal property to sell no more than the interest which he legally possesses, nor may he, by such sale, deprive the true owner of his lawful right to claim either the article so sold or restitution therefor, even against a bona fide purchaser: Wilson v. Crocket, 43 Mo. 216; 97 Am. Dec. 389, and note 392.

SALES IN MARKET OVERT. —The ancient rule of the common law was that title to personal property could not be acquired from one who had himself no title in general, except by a bona fide sale in market overt: Carmichael v. Buck, 10 Rich. 332; 70 Am. Dec. 226. This doctrine, however, of sales in market overt, protecting the buyer, is not recognized as of any force in this country: Ventress v. Smith, 10 Pet. 161, 176; Wilson v. Crockett, 43 Mo. 216; 97 Am. Dec. 389, 390; 2 Schouler on Personal Property, ed. 1884, sec. 19; Koch v. Branch, 44 Mo. 542; 100 Am. Dec. 324, 326; Hoffman v. Carow, 22 Wend. 285, and note; Rogers v. Huie, 1 Cal. 429; 54 Am. Dec. 300; Saitus . Everett, 20 Wend. 267; 32 Am. Dec. 541; Worthy v. Johnson, 8 Ga. 236; 52 Am. Dec. 399; Wheelwright v. Depeyster, 1 Johns. 471; 3 Am. Dec. 345; Levi v. Booth, 58 Md. 305; 42 Am. Rep. 332; Hosack v. Weaver, 1 Yeates, 478; Easton v. Worthington, 5 Serg. & R. 130; King v. Richards, 6 Whart. 418, and notes; 25 Am. Dec. 607; 70 Am. Dec. 230.

WHERE THE CHARACTER OF THE PROPERTY STOLEN IS CHANGED, OR IS ENHANCED IN VALUE BY LABOR. - Where a trespasser cuts trees from the owner's land and converts them into railroad ties, and they are thereafter purchased by one in good faith, it is held that the owner is not divested of

his title thereto, but may recover the specific property. The court said: "The rule is well established, with scarcely an exception, that where the identity of the original article can be traced, the right of property in the original owner continues to exist. . . . . When the identity of the original article is lost, we can easily well see how the title is gone from the original owner, as where grapes have been converted into wine, or timber into a house, or corn into whisky, or where railroad ties have become part of the road. In all such cases it will be adjudged as a matter of law that the identity of the article is destroyed, and the rights of the innocent purchaser will be protected. There has been such a mechanical transformation of the article as to destroy its identity, and the mere fact that the timber can be traced into a building, or the corn to the distillery in which the whisky was made, or out of which it was made, is not such an identification of the property as would authorize its recovery. . . . . If the timber had been worked into the depot buildings of the company, or made part of the road-bed by laying it down as ties, this annexation to the principal improvement would have divested the owner of title. . . . . When an accidental appropriation or a conversion is made under a mistake of fact, it is conceded that under certain circumstances the purchaser must look alone to his action for damages. The general doctrine is, that the accession of mere value by the application of skill and labor alone is insufficient to divest the owner of title. Excep tions are to be found to this rule," however, and in cases of wanton trespassers, the rule is more strict than in cases of mistake: Strubbee v. Trustees Cincinnati R'y, 78 Ky. 481; see Newmark on Sales, sec. 182.

....

BONA FIDE PURCHASER FROM Vendee UNDER CONDITIONAL SALE. — The current of authority is, that a party who purchases chattels in good faith from a vendee, under a conditional sale, acquires no right thereto as against the original vendor, if no negligence can be imputed to the latter in asserting his claim: Sargent v. Metcalf, 5 Gray, 306; 66 Am. Dec. 368, and note 369; Sumner v. Woods, 67 Ala. 139; 42 Am. Rep. 104, and note 105; Burbank v. Crocker, 7 Gray, 158; 66 Am. Dec. 470; Ketchum v. Brennan, 53 Miss. 596, 607. Provided, always, that there is an express stipulation that no title shall pass till the price is paid: Dunbar v. Rawles, 28 Ind. 225; 92 Am. Dec. 311, and note 317; Bailey v. Harris, 8 Iowa, 331; 74 Am. Dec. 312, and note 313. But see Haggerty v. Palmer, 6 Johns. Ch. 437; Keeler v. Field, 1 Paige, 315; Smith v. Lynes, 5 N. Y. 41. And also provided that the conditional vendor is guilty of no laches: Crocker v. Gullifer, 44 Me. 491; 69 Am. Dec. 118; Sargent v. Metcalf, 5 Gray, 306; 66 Am. Dec. 368, and note 369. The reason of the above rule is, that the vendee under a conditional sale is deemed, as a general rule, only a bailee for a specific purpose, and having only the bare right of possession, he has therefore no title to confer on others by a sale to them: Harkness v. Russell, 118 U. S. 663; Newmark on Sales, sec. 19; Ketchum v. Brennan, 53 Miss. 596, 607. So a purchaser in good faith from one holding a sewing-machine under a conditional sale obtains no title against the conditional vendor: Singer Mfg. Co. v. Graham, 8 Or. 17; 34 Am. Rep. 572. And in another case, where S. purchased of the defendant co:npany a safe on credit, under a contract that the safe was to be the property of the company until the price was paid, and subsequently S. sold and delivered the safe to the plaintiff, who bought and paid for it in good faith, without knowledge of the contract between S. and the company, it was held that the plaintiff only acquired such title in the safe as his vendor had, and that the company was the owner: Marvin Safe Co. v. Norton, 48 N. J. L. 412; 57 Am. Rep. 566. In the following case it would seem that this rule

was carried to its extreme limit. The facts were these: The plaintiff sold a chattel to G. on condition that it should remain the plaintiff's until paid for, and gave him a receipted bill of sale therefor, omitting, at G.'s request, any statement of the condition. The defendant bought the chattel of G., without notice of the condition, after having been informed by the plaintiff that he had sold it to G., and after having seen the bill of sale, but before G. had paid the plaintiff for it. It was held that, in the absence of fraud, the plaintiff was not estopped to claim the chattel from the defendant: Zuchtman v. Roberts, 109 Mass. 53; 12 Am. Rep. 663. Though in Pennsylvania, where furniture was sold upon the written agreement of the purchaser to pay not less than five dollars a week until the price was paid, the goods to remain the property of the seller, subject to removal upon failure to make any or all of such payments, and the furniture was delivered to the purchaser, who failed to make any payment, and sold it to a third person who had no knowledge of the agreement, it was held that the latter obtained a valid title: Stadtfield v. Huntsman, 92 Pa. St. 53; 37 Am. Rep. 661, and note 664; and see Kinttel v. Cushing, 57 Tex. 354, 44 Am. Rep. 598, where the registration laws seem to be the governing factor as to whether such subpurchaser may hold such chattels. The leading case of Harkness v. Russell, 118 U. S. 663, 678, quoted from in note 57 Am. Rep. 575, exhaustively reviews the law in the different states upon this point, so that it is unnecessary to make here more than a very brief summary from that opinion as to some of the states. It is there said that there has been some diversity of opinion in New York in relation to the title of a bona fide purchaser from a vendee who holds property under a contract for a conditional sale; and the authorities in that state are there fully considered. It is also there said that the Illinois rule is, that a bona fide purchaser from a conditional vendee, without notice, has a valid title. Also, that by recent statutes in Maine, Vermont, and Iowa it is declared that no such agreement in regard to personal property shall be valid against third persons without notice. As to the differing rule in Pennsylvania and some other states, and the reasons upon which they are based, see opinion in said case in extenso; also Newmark on Sales, secs. 19, 193, 194. EXCEPTIONS TO THE GENERAL RULE. Cash, Bank Bills, etc. The most notable exception to the rule that the vendor can confer by sale no greater title than he himself has, and that the true owner cannot be divested of his title without his consent, except by legal process or some improvidence of his own, exists in the case of cash, bank bills, notes, checks, and other negotiable instruments payable to bearer and transferable by delivery in the ordinary course of business to a person taking them bona fide and for value. The rule being "well settled at common law that the bona fide holder of money or negotiable paper transferable by mere delivery, and not overdue, who has taken it in the usual course of business and for a valuable consideration, acquires a perfect title. . . . . This exception to the common-law rule, that the purchaser of a chattel can acquire no better title than the vendor had, has been adopted, because, in the language of Lord Kenyon in Lawson v. Weston, 4 Esp. 56, the contrary principle would at once paralyze the circulation of all paper in the country, and with it all its commerce"": Jones v. Nellis, 41 Ill. 482; 89 Am. Dec. 389; Fawcett v. Osborn, 32 Ill. 411; 83 Am. Dec. 278; 2 Schouler on Personal Property, cd. 1884, sec. 20; Newmark on Sales, sec. 174; Saltus v. Everett, 20 Wend. 267; 32 Am. Dec. 541; and see note 25 Id. 610.

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Stolen Bank Bills. So the holder of a bank bill stolen before issuance, who receives it bona fide in the usual course of business for value, may recover