Majority
p. 389Sarah Russell, Resp’t, v. George Willette, App’lt. (Supreme Court, General Term, Third Department, Filed September 27, 1894.
Headnote
Conversion—When lies.Possession of land and crops grown thereon is sufficient to entitle the person in possession-to maintain trover for such crops.
Appeal from a judgment, entered on a verdict in favor of plaintiff.
Burke & Scanlon (Charles A. Burke, of counsel), for app’lt; Kellas & Munsill (John P. Kellas, of counsel), for resp’t.
The plaintiff prosecuted this action to recover the value of a quantity of bay which she alleges that the defendant had wrongfully converted to his own use. The answer of the de
p. 390
fendant denied the conversion, and sot up title in the defendant, alleging that the hay was the product of land owned by his principal, and that he took the hay by virtue of authority from the owner of such land. The evidence disclosed that the plaintiff for many years had been in the possession of the land from which the hay was cut, and was so in the possession at the time of cutting and gathering the bay. We do not deem it necessary in tb is case to discuss the question of the title to this land on this appeal. It is by no means clear that the plaintiff was not, by virtue of the trust deed under which she took possession of this land entitled to retain the possession of the same, as that trust was coupled with the duty of supporting the cestui que trust.. But we do not decide that point. It is enough for the purpose of this action that the plaintiff was in possession of this land, and the hay for which the action was brought. If the defendant’s principal has a better title, she must assert it in an action of ejectment, when she can be fully indemnified for mesne profits. We see no error either in the rulings of the trial judge on the receipt of or rejection of evidence, or in his direction to the jury, or refusal to set aside their verdict.
The judgment is affirmed, with costs.
All concur.