The Second Congregational Society in North Bridgewater versus Thomas J. Howard, 16 Pick. 206

Shaw C. J. delivered the opinion of the Court. This is an action of no great importance; but the parties have put themselves upon their legal rights, depending upon somewhat strict points, and as such the Court have endeavoured to ascertain and declare them. It is an action of trespass, and depends very much upon that most difficult of all nice technical distinctions, that between case and trespass.

Two questions were discussed at the argument, first, whether the deed was ever so executed and delivered as to be the properly of the plaintiffs ; and if so, secondly, whether, under the circumstances stated in the report, trespass will lie. The first is mainly a question of fact, but as the evidence is detailed, and the question of its sufficiency referred to the Court, they have considered it.

We are of opinion, that the evidence shows abundantly that this deed was duly executed. [The Chief Justice proceeded to comment on the evidence of a delivery.] Then the question recurs, supposing this deed duly executed and delivered upon good consideration, so as to become the property of the society, and obtained by the defendants in the manner stated, whether they are liable in trespass. It is necessary to refer to these circumstances. It appears then, that the deed was executed and complete, and was left in the hands of Crafts merely for safe keeping.

It was out of his hands, once or twice, once for several months, when it was handed to another agent of the society, Shaw, to enable him to determine how to set the fence ; indicating by this circumstance, the understanding of all parties, that the deed was executed, and the estate passed by it. Then the circumstances under which it was given up were these. Thomas J. Howard applied to Crafts for it, and stated that they bad objected to signing it when it was given ; and Crafts thought, on that account, that there was a propriety in his giving it up, and on that ground he did give it up.

It has not been attempted, in argument, to maintain the sufficiency of this reason, or to justify the conduct of Crafts. It is left somewhat doubtful on the report, whether Crafts had not, at that time, ceased to be a member of the society, and if the cause had turned on that fact, it might have been necessary to ascertain it more precisely ; but we think it does not. Under these circumstances, the Court are of opinion, that the authority of Crafts was merely that of a bailee for safe custody, that he had no authority, either to give up the deed, or to assent to the act of Thomas J.

Howard in taking it, and therefore that the act of taking it from the custody of Crafts, stands on the same footing as if his consent had not been given. The possession of Crafts, without property, lien, or other claim of right, was the possession of the parish. It therefore amounts to this, taking away the properly of the plaintiffs unlawfully, without justifiable cause, and without their consent, from their possession ; and this we think will support an action of trespass.

To maintain trespass it is not necessary to prove actual force in the taking ; force enough to do the act, and acquire the possession, against right, and without the consent of the owner, is sufficient. Taking by force, in the" sense of the law, as applied to the action of trespass, is, taking without right or permission, in violation of the lawful possession of 'another. Gibbs v. Chase, 10 Mass. R. 128. Had the defendant taken the deed from the society’s own depository, or from the table of their desk, there would have been no more actual force, and yet it cannot admit of a doubt, that trespass would lie.

In one respect, indeed, not material to the present case, the assent of the keeper may be regarded as very material to the defendant, to rebut an imputation of a much more heinous nature, to which he might have been obnoxious, had the deed been obtained clandestinely, to de prive the defendants of the use and benefit of it.

The specific ground upon which this cause is decided, is this ; that the deed had become the property of the plaintiffs, and was in their lawful constructive possession, that Crafts was a mere depository, with no authority to surrender the deed to the grantors, or to consent to their taking it, for the purpose proposed, namely, to cancel it, that his assent thereto was •wholly void, that the possession of the defendants, from the first moment of acquiring, was unlawful, that it was a violation of the plaintiffs’ right of possession, and not a wrongful conversion after a rightful possession acquired, and therefore, that the action of trespass will lie.

Suppose a deed intrusted to a servant, or a stranger, to carry to the register’s office, and the grantor should ask for it, and the messenger, by mistake or otherwise, should deliver it, and the grantor should withhold it and deny the grantee’s claim to have it restored, would the grantee’s remedy be in any respect diminished, impaired, or affected by the assent of the messenger ?

Suppose the same thing should occur in regard to a deed left with the register to record ; the register being the temporary keeper of the deed for a special purpose, if he should consent that the grantor should take away the deed, would such consent make the possession of the grantor, obtained without right, lawful, and compel the owner to make his demand, and resort to his action of trover ?

One consideration which presented itself to our minds was, whether Crafts might be deemed a tenant in common, claiming under this deed, and if so, whether, as one of the grantees, though he might be responsible to his cotenants, yet whether he had not such an authority coupled with an interest in the deed, as would with his consent give a lawful possession of the deed to the defendants. But the well known rule, in regard to a corporation, as being a person in law, having rights distinct from those of all its members, settles this question.

The deed was the property of the corporation, Crafts was not a cotenant, and had no property or interest, either in the land or the instrument conveying it, and therefore towards the corporation he stood upon the same footing as any other depositary, not a member of the society ; and this renders it "mmaterial whether he was a member of the society at the time, or not, other than as the fact may be supposed to have an influence upon his motives. In regard to the defendant, Welcome Howard, there appears no sufficient evidence to charge him.

The principle is no doubt true, that one may be chargeable in trespass by the act of another done for his benefit, if he assents to it; but there is no evidence to bring this defendant within its operation. The defendant, Thomas J. Howard, is to be defaulted. As to the other defendant, Welcome Howard, the plaintiffs are to become nonsuit. Note. It appears, that the damages were estimated at the value of the land.

But as the getting up of the deed did not divest the plaintiffs’ title, before entering judgment, the Court directed an inquiry whether the plaintiffs had released the land, and if not, whether they should not do so, or recover nominal damages only ; and at October term, 1835, by agreement of the parties, judgment was entered for nominal damages.