Ivers & Pond Piano Co. v. Allen , 101 Me. 218 ( 1906 )

Powers, J.

Trover for a piano. In ;July, 1904, the plaintiff delivered the piano to the defendant, who at that time executed and delivered to the plaintiff a lease or agreement in regard to the same, reciting that she had paid ten dollars for rent until August 7, 1904, and was to pay eight dollars a month for the use of the same, as long as she hired the piano, until $300 and interest on unpaid balances of that sum was paid, and that, if she fulfilled her agreements till the payments of rent amounted to $300 and interest, the piano should become her property. This instrument was never recorded. The defendant paid as agreed up to February', 1905, when the piano was destroyed by fire. On December 28, 1904, the defendant mortgaged the piano to one Means, who recorded his mortgage but never took possession of the property. The presiding justice ordered a nonsuit' and the plaintiff excepted. By agreement of the parties, if the non-suit was incorrectly ordered, the plaintiff is to have judgment for $250.

The so called lease was in substance a conditional sale, not valid, except between the original parties, without record. R. S., chapter 114, section 5. The plaintiff’s mortgage of the piano, not simply of her interest in it, conveyed a good title to Means. Before that mortgage and its record the plaintiff had the full title to. the property, subject to the defendant’s equity of redemption. After that the plaintiff had simply the right to redeem from the Means mortgage. The fact that the plaintiff saw fit to trust to the defendant’s honor instead of recording its lease, gave her no right to sell or dispose of the piano in any way that would injuriously affect its rights. As against the defendant its claim was valid, and her mortgage of the property was an illegal and unauthorized exercise of dominion over it, inconsistent with and detrimental to the rights of the plaintiff. It requires neither citation nor argument to show that such an act, carrying with it such consequences, was a conversion of the property, without any manual transfer or removal of it. Indeed we know of no accepted definition of a conversion which would exclude the facts of this case. It is sometimes said, that a mere paper sale of a chattel without transfer of possession does not constitute a conversion. That is true, where the rights of the owner to possession, and his legal interest in and title to the chattel, remain unaffected and unimpaired by the sale. Not so here, where the legal effect of the defendant’s unlawful act deprived the plaintiff of its property and its right to possession thereof.

This case is not to be confounded with cases against a mortgagor, who has sold only his interest in the mortgaged property, as in White v. Phelps, 12 N. H. 382, or with cases against a vendee of the mortgagor, as in Dean v. Cushman, 95 Maine, 454, who obtains by his purchase a right of possession against all the world except the mortgagee.

Exceptions sustained.

Judgment for the plaintiff for ‡250.