Where A. turned cattle into the woods, and B., thinking one of them his, took possession of it, after which A., ignorant of B.'s possession, sold it to C., who was also ignorant of it, it was Held, that C. might, in his own name, sue B., as the possession which he had at the time of the sale could not be deemed adverse.
HALL, J.
The reason urged for a new trial in this case is that the court refused to nonsuit the plaintiff because, when he purchased the steer in dispute, he purchased a chose in action, and could not bring the action in his own name. The facts are that Elijah Morgan was the owner of the steer, and had turned him out with other cattle in the woods. In this situation (as he and the plaintiff supposed him to be) he sold him to the plaintiff, but it afterwards appeared that the (560) defendant, before the sale, had by mistake taken up the steer with his other cattle, supposing him to be one of his own raising. It is argued that this mistake divested the owner of his possession, so that he could only sell a chose in action. At the time of the sale there was no adverse possession by the defendant, as there afterwards was when the plaintiff made a demand for the steer. There was nothing of champerty or maintenance in the case; the seller and owner were both ignorant that the defendant had taken the steer into his inclosure. I think, from all the circumstances of the case, that the rule for a new trial should be discharged. Nichols v. Bunting, ante, 86.
PER CURIAM. No error.
Cited: Stedman v. Riddick, 11 N.C. 34.