Bruner v. Dyball

Citations

• 42 Ill. 34

Syllabus

<p>1. Demand—wTim necessary, in trover. A conversion is not produced by a demand and refusal, but it is the evidence of a conversion. Whenever a conversion is shown, the action of trover may be maintained.</p> <p>3. Where the property has-been sold and converted into money, a demand is unnecessary, because an actual conversion has taken place.</p> <p>8. So, generally, when a party commits a trespass, by wrongfully taking possession of the property of another, although it may be under a claim of right, a recovery may be had.</p> <p>4. The distinction seems to be, that where a party comes into possession rightfully, but his possession has become wrongful, then a demand and refusal are necessary to show that he has converted the property.</p> <p>5. But where the possession is taken under a wrongful claim of ownership, the taking is, of itself, a conversion, and no demand is necessary.</p> <p>6. And the fact that the possession was obtained through the forms of law, makes no difference, where the proceeding was designed as a fraud upon the owner.</p> <p>7. So, where a party obtains possession of the property of another by means of a writ of replevin, under an assertion of title, but with intent thereby to defraud the owner, such taking is a conversion, and the owner may maintain trover without making a demand.</p> <p>8. Eeplevin—effect of seizing propen'ty under the writ, as to its ownership. The mere taking possession of property under a writ of replevin, by the plaintiff therein, does not affect the ownership thereof. That can only be determined by a trial, and the judgment of a court.</p> <p>9. Same—remedy of the owner. So, if the plaintiff in replevin, after having obtained possession of the property of another under the writ, dismisses his suit without a trial upon the merits, the owner may maintain trover or replevin against him and have the right determined. His remedy upon the replevin bond is not exclusive. The case of Speer v. Skinner, 35 Ill. 382, is distingu