O.C.G.A. § 44-12-150 (2019)

Annotations

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION PREREQUISITES TO TROVER ACTION 1. ACTS CONSTITUTING CONVERSION 2. ACTS NOT CONSTITUTING CONVERSION PARTIES AGAINST WHOM TROVER ACTION MAINTAINABLE REMEDIES General Consideration Action of trover is for recovery of possession of chattels belonging to the plaintiff, not an action on account for a debt. Youngblood v. Duncan, 49 Ga. App. 300, 175 S.E. 411, 1934 Ga. App. LEXIS 370 (1934). Statutory action of trover contains characteristics of common-law actions of replevin, detinue, and trover. Livingston v. Epsten-Roberts Co., 50 Ga.

App. 25, 177 S.E. 79, 1934 Ga. App. LEXIS 608 (1934). Conversion not prevented by acquisition in good faith. - The fact that possession of stolen property, unlawful as against the true owner, may have been acquired in good faith will not prevent such possession from operating as a conversion against the true owner. Lovinger v. Hix Green Buick Co., 110 Ga. App. 698, 140 S.E.2d 83, 1964 Ga. App. LEXIS 743 (1964).

Evidence of defendant’s possession may be inferential when the action is brought and it need not be strong enough to prevent a nonsuit. Robson v. Rawlings, 79 Ga. 354, 7 S.E. 212, 1887 Ga. LEXIS 225 (1887). Showing of possession. - Proof that the property, for which an action is brought, was at the home of the defendant is evidence of possession in the defendant. Mercier v. Mercier, 43 Ga. 323, 1871 Ga. LEXIS 231 (1871). Whether facts support allegation of ownership is question of law. - Where the plaintiff in a trover action does allege facts upon which plaintiff bases title, it becomes a question of law whether or not the facts alleged support the allegation of ownership. Livingston v. Epsten-Roberts Co., 50 Ga. App. 25, 177 S.E. 79, 1934 Ga. App. LEXIS 608 (1934). Jury instructions. - Where a plaintiff brought suit against an insurance company for conversion of an automobile and its contents after the car was involved in an accident with the insurance company’s insured, and the insurance company moved it to a free storage location, the trial court did not err in giving a jury charge which tracked the provisions of O.C.G.A. § 44-12-150 but inserted the word “unlawful” in front of “possession.” Connors v. Omni Ins. Co., 195 Ga. App. 607, 394 S.E.2d 402, 1990 Ga. App. LEXIS 615 (1990). Prerequisites to Trover Action In order to recover in a trover case it is essential that the plaintiff show either title or right of possession, and in some cases it is necessary to establish both; and, although title is presumed to follow possession of the property, such presumption is rebuttable. Kornegay v. Thompson, 157 Ga. App. 558, 278 S.E.2d 140, 1981 Ga. App. LEXIS 1911 (1981). In order to prevail, where title is claimed, plaintiff must present proof of legal rather than equitable title. Kornegay v. Thompson, 157 Ga. App. 558, 278 S.E.2d 140, 1981 Ga. App. LEXIS 1911 (1981); Alpert v. Wickes Cos., 182 Ga. App. 51, 354 S.E.2d 674, 1987 Ga. App. LEXIS 1620 (1987). In order to present a cause of action for conversion, an act of dominion

over the personal property of another inconsistent with the owner’s rights or by an unauthorized appropriation must be shown. Kornegay v. Thompson, 157 Ga. App. 558, 278 S.E.2d 140, 1981 Ga. App. LEXIS 1911 (1981); Alpert v. Wickes Cos., 182 Ga. App. 51, 354 S.E.2d 674, 1987 Ga. App. LEXIS 1620 (1987). In order to be chargeable with conversion, technically it is not necessary that the defendant assert any right of ownership over the property; it is sufficient if the defendant wrongfully assumes dominion over the property inconsistent with the owner’s right. Maryland Cas. Ins. Co. v. Welchel, 257 Ga. 259, 356 S.E.2d 877, 1987 Ga. LEXIS 780 (1987). Mere possession of property will support trover action. - As against a wrongdoer, mere possession of property by one in own right (not merely as agent of another) will support an action of trover. Livingston v. Epsten-Roberts Co., 50 Ga. App. 25, 177 S.E. 79, 1934 Ga. App. LEXIS 608 (1934). Plaintiff must show title personally at the time of the institution of the action either general or special and actual possession or a right of immediate possession. Livingston v. Epsten-Roberts Co., 50 Ga. App. 25, 177 S.E. 79, 1934 Ga. App. LEXIS 608 (1934). Ordinarily plaintiff must show conversion in order to recover in trover. McDaniel v. White, 140 Ga. App. 118, 230 S.E.2d 500, 1976 Ga. App. LEXIS 1367 (1976). Exception to conversion applies if defendant acquires possession of property lawfully. Brooks v. Fincher, 150 Ga. App. 201, 257 S.E.2d 326, 1979 Ga. App. LEXIS 2118 (1979). Possession lawfully acquired. - While it is provided by O.C.G.A. § 44-12150 that it shall not be necessary to prove a conversion of the property in an action of trover where the defendant is in possession when the action is brought, this rule does not apply where the defendant’s possession is lawfully acquired. Wood v. Sanders, 87 Ga. App. 84, 73 S.E.2d 55, 1952 Ga. App. LEXIS 616 (1952). If the defendant acquired possession of the property lawfully, then it is necessary to prove either actual conversion or a

Prerequisites to Trover Action (Cont’d) demand for return of the property and defendant’s failure or refusal to redeliver. McDaniel v. White, 140 Ga. App. 118, 230 S.E.2d 500, 1976 Ga. App. LEXIS 1367 (1976). Where the defendants disclaimed title to the property sued for in their plea, and as they had lawfully acquired possession of the property as bailees, it is necessary for the plaintiff to prove an actual conversion of the goods or a demand for and a refusal to redeliver them. Wood v. Sanders, 87 Ga. App. 84, 73 S.E.2d 55, 1952 Ga. App. LEXIS 616 (1952). It is necessary to prove either actual conversion or a demand for return of the property and defendant’s failure or refusal to redeliver. Graham v. State St. Bank & Trust Co., 111 Ga. App. 416, 142 S.E.2d 99, 1965 Ga. App. LEXIS 987 (1965). Unless actual conversion by bailee is shown, action of trover against the bailee will not lie, without a previous demand for the goods and failure to redeliver. Wood v. Sanders, 87 Ga. App. 84, 73 S.E.2d 55, 1952 Ga. App. LEXIS 616 (1952). If actual conversion is shown no demand is necessary. Lovinger v. Hix Green Buick Co., 110 Ga. App. 698, 140 S.E.2d 83, 1964 Ga. App. LEXIS 743 (1964). Section not applicable where property lawfully acquired by defendant. - While it would appear from O.C.G.A. § 44-12-150 that it would not be necessary to prove a conversion of property in a trover action where the defendant is in possession when the action is brought, that section has been held not applicable where the property has been lawfully acquired by the defendant. Kornegay v. Thompson, 157 Ga. App. 558, 278 S.E.2d 140, 1981 Ga. App. LEXIS 1911 (1981). Issue as to who has legal title to property is for jury. - Although defendant is the possessor of the personal property in question, where plaintiff’s testimony goes beyond presenting some suggestion of an equitable title in plaintiff but also presents an issue of material fact

as to whether it was the intent of the parties at the time of the transfer of the personal property that the legal title to the personal property vest in defendant, the resolution of this conflict in the evidence, as to who has legal title to the property, is for the jury. Kornegay v. Thompson, 157 Ga. App. 558, 278 S.E.2d 140, 1981 Ga. App. LEXIS 1911 (1981). Demand and wrongful refusal. - Since mere default in the payment of a debt does not alone constitute conversion, demand and refusal are conditions precedent to the institution of a trover action brought on property conveyed in a bill of sale to secure debt. Robbins v. Welfare Fin. Corp., 95 Ga. App. 90, 96 S.E.2d 892, 1957 Ga. App. LEXIS 724 (1957). Proof of demand and refusal where required, is required only as evidence of a conversion; and where, a conversion has been shown by other evidence, such proof is not essential. James v. Newman, 73 Ga. App. 79, 35 S.E.2d 581, 1945 Ga. App. LEXIS 395 (1945); Lovinger v. Hix Green Buick Co., 110 Ga. App. 698, 140 S.E.2d 83, 1964 Ga. App. LEXIS 743 (1964). Where there is an agreement and the plaintiff relinquishes lawful possession to the defendant, demand and a wrongful refusal are prerequisites to a trover action. Brooks v. Fincher, 150 Ga. App. 201, 257 S.E.2d 326, 1979 Ga. App. LEXIS 2118 (1979). Only purpose of demand in trover action is to show conversion. Eubanks v. Hilliard, 88 Ga. App. 106, 76 S.E.2d 133, 1953 Ga. App. LEXIS 1022 (1953). Demand and refusal is necessary only when defendant comes into possession of property lawfully. What is meant by defendant coming lawfully into possession of the property is, where defendant finds it and retains it for the true owner; or where defendant obtains the possession of the property, by the permission or consent of the plaintiff. In this latter class of cases, a demand and refusal would be necessary, unless it could be shown the defendant had appropriated the article so found to defendant’s own use, or had disposed of the property bailed, contrary to the terms and stipulations of the contract of bailment. Lovinger v. Hix Green Buick Co., 110 Ga. App. 698,

140 S.E.2d 83, 1964 Ga. App. LEXIS 743 (1964). Instances where proof of demand and refusal or conversion unnecessary. - Where a defendant in an action of trover admits in the plea or answer to possession of the property at the time of the action, under an adverse claim of title or right of possession, it is not necessary for the plaintiff to prove a demand and refusal or any other conversion of the property. C.I.T. Corp. v. Smith, 56 Ga. App. 544, 193 S.E. 261, 1937 Ga. App. LEXIS 163 (1937), aff’d, 186 Ga. 199, 197 S.E. 322, 1938 Ga. LEXIS 586 (1938). No proof of demand is necessary where the defendant’s answer admits the conversion. Coley v. Dortch & Co., 139 Ga. 239, 77 S.E. 77, 1913 Ga. LEXIS 391 (1913); Smith v. Commercial Credit Co., 28 Ga. App. 403, 111 S.E. 821, 1922 Ga. App. LEXIS 547 (1922); Whelchel v. Roark, 31 Ga. App. 75, 119 S.E. 451, 1923 Ga. App. LEXIS 732 (1923). In a conditional sale of machinery where the defendant refuses to pay the entire purchase price, proof of demand and refusal or conversion is unnecessary. Carter v. American Slicing Mach. Co., 23 Ga. App. 422, 98 S.E. 365, 1919 Ga. App. LEXIS 146 (1919). Where the defendant is in possession of the property sued for in a trover action and claims title thereto adversely to the plaintiff, it is unnecessary for the plaintiff to prove a conversion or a demand and refusal. Eubanks v. Hilliard, 88 Ga. App. 106, 76 S.E.2d 133, 1953 Ga. App. LEXIS 1022 (1953). Proof of conversion unnecessary except to save plaintiff courts costs. - Where the defendant is in possession at the time the action is entered, proof of demand and refusal is necessary only to save the plaintiff the costs of court in case the defendant should disclaim title to the property. Pearson v. Jones, 18 Ga. App. 448, 89 S.E. 536, 1916 Ga. App. LEXIS 405 (1916); C.I.T. Corp. v. Smith, 56 Ga. App. 544, 193 S.E. 261, 1937 Ga. App. LEXIS 163 (1937), aff’d, 186 Ga. 199, 197 S.E. 322, 1938 Ga. LEXIS 586 (1938). Defendant is liable for costs where he does not disclaim, although the plaintiff has relevied the property. Wall v.

Johnson, 88 Ga. 524, 15 S.E. 15, 1892 Ga. LEXIS 59 (1892). In addition to proof of demand and refusal or conversion, it is necessary for a plaintiff to prove title or right to possession in order to establish a prima facie trover case. McDaniel v. White, 140 Ga. App. 118, 230 S.E.2d 500, 1976 Ga. App. LEXIS 1367 (1976). No contractual relationship between parties required. - There is no requirement that there be a contractual relationship between plaintiff and defendant before an action in trover can be maintained. Kelley v. Sheehan, 61 Ga. App. 714, 7 S.E.2d 298, 1940 Ga. App. LEXIS 232 (1940). In a trover action against a neighbor for return of a cow and damages, award of return of the cow but denial of damages was proper where plaintiff did not prove that defendant obtained the cow by an unlawful method and that plaintiff made a demand for return of the cow. Simmons v. Bearden, 222 Ga. App. 430, 474 S.E.2d 250, 1996 Ga. App. LEXIS 829 (1996). 1. Acts Constituting Conversion Possession of property with claim of title adverse to that of true owner constitutes conversion, and in such circumstances no demand is necessary to constitute conversion. Beaver v. Magid, 56 Ga. App. 272, 192 S.E. 497, 1937 Ga. App. LEXIS 333 (1937). Any distinct act of dominion wrongfully asserted over one’s property, in denial of right or inconsistent with it, is a conversion. James v. Newman, 73 Ga. App. 79, 35 S.E.2d 581, 1945 Ga. App. LEXIS 395 (1945); Lovinger v. Hix Green Buick Co., 110 Ga. App. 698, 140 S.E.2d 83, 1964 Ga. App. LEXIS 743 (1964). Employee commits wrongful conversion where, without the consent of the assignee, the employee collects wages assigned and converts them to the employee’s own use. Bell Fin. Co. v. Johnson, 51 Ga. App. 350, 180 S.E. 373, 1935 Ga. App. LEXIS 691 (1935). Possession of stolen automobile constitutes conversion. - Acquiring possession of the plaintiff’s automobile after it had been stolen was an act of domin-

Acts Constituting Conversion (Cont’d) ion over the vehicle inconsistent with the right of the true owner, and the defendant’s possession of the automobile constituted a conversion of the vehicle as against the plaintiff notwithstanding the issue of the defendant’s good faith. Lovinger v. Hix Green Buick Co., 110 Ga. App. 698, 140 S.E.2d 83, 1964 Ga. App. LEXIS 743 (1964). 2. Acts Not Constituting Conversion No conversion exists where defendant lawfully acquires possession of property, in the absence of demand and refusal. Colonial Credit Co. v. Williams, 95 Ga. App. 76, 97 S.E.2d 197, 1957 Ga. App. LEXIS 717 (1957); McDaniel v. White, 140 Ga. App. 118, 230 S.E.2d 500, 1976 Ga. App. LEXIS 1367 (1976). Purchaser’s default in payment of purchase money alone will not constitute conversion of the property. Colonial Credit Co. v. Williams, 95 Ga. App. 76, 97 S.E.2d 197, 1957 Ga. App. LEXIS 717 (1957). Intervening, criminal act. - Where the defendant is chargeable with conversion by reason of the fact that defendant wrongfully assumed possession of the property and moved it from one location to another where it was stolen by a third party, the defendant’s conversion of the property is not the proximate cause of the loss unless the intervening criminal act was reasonably foreseeable. Maryland Cas. Ins. Co. v. Welchel, 257 Ga. 259, 356 S.E.2d 877, 1987 Ga. LEXIS 780 (1987). Parties Against Whom Trover Action Maintainable Vendee in conditional sale contract may maintain trover against third person wrongfully depriving that third party of possession of such property. Liv-

ingston v. Epsten-Roberts Co., 50 Ga. App. 25, 177 S.E. 79, 1934 Ga. App. LEXIS 608 (1934). Plaintiff may institute action of trover against administrator, where administrator wrongfully withholds property belonging to the plaintiff, before the expiration of 12 months. Byrd v. Riggs, 87 Ga. App. 7, 73 S.E.2d 35, 1952 Ga. App. LEXIS 597 (1952). Trover lies against agent even though the agent does not purport to act personally, but wholly for another. Kelley v. Sheehan, 61 Ga. App. 714, 7 S.E.2d 298, 1940 Ga. App. LEXIS 232 (1940). Remedies Owner’s election of remedies. - Where timber is wrongfully cut from land and carried away, the owner has an election of remedies: the owner may sue in trespass quare clausam fregit; or, since the trees become personalty when severed, the owner may maintain trover or any other form of action appropriate to the recovering of the possession of personalty; or for damages for the injury to or conversion of that class of property. Rowland v. Gardner, 79 Ga. App. 153, 53 S.E.2d 198, 1949 Ga. App. LEXIS 605 (1949). Action of trespass to personalty is concurrent with action of trover and conversion, although the two actions are not entirely coextensive. Maryland Cas. Ins. Co. v. Welchel, 257 Ga. 259, 356 S.E.2d 877, 1987 Ga. LEXIS 780 (1987). Defeat of action of trover. - The right of possession, through some special title in property, such as the legal impounding of cattle by the defendant, and the detention of property by the defendant for charges as depository for hire will defeat an action of trover by the holder of the legal title to such property. Livingston v. Epsten-Roberts Co., 50 Ga. App. 25, 177 S.E. 79, 1934 Ga. App. LEXIS 608 (1934).

RESEARCH REFERENCES Am. Jur. 2d. 18 Am. Jur. 2d, Conversion, § 51. C.J.S. 89 C.J.S., Trover and Conversion, § 117.

ALR. May trover be predicated upon the mere act of purchasing property from someone other than the true owner, without taking actual possession, 38 A.L.R. 1096.

Mere detention of or failure to deliver chattels after demand as conversion, 61 A.L.R. 621; 129 A.L.R. 638. Corporate stock or certificate thereof as subject of conversion, 83 A.L.R. 1199. Mere possession in plaintiff as basis of action for wrongfully taking or damaging personal property, 150 A.L.R. 163. Sufficiency of proof in replevin of defendant’s possession at time of commencement of action, 2 A.L.R.2d 1043. Identification of animals involved in conversion action, 51 A.L.R.2d 1154.

Replevin or claim-and-delivery: modern view as to validity of statute or contractual provision authorizing summary repossession of consumer goods sold under retail instalment sales contract, 45 A.L.R.3d 1233. Garageman’s lien for towing and storage of motor vehicle towed from private property on which vehicle was parked without permission, 85 A.L.R.3d 240.