made the ground of an action for detinue, if the plaintiff desires to have the property returned in specie. The knowledge, motive or good faith of the person wrongfully dealing with the property of another is for civil purposes immaterial, and the action is often brought to try the title of two claimants to the same goods; e.g. where a person who has innocently bought or taken in pledge goods stolen or illegally procured resists the claim of the original owner for the return of the goods. A warehouseman may render himself liable to the owner of goods deposited with him, through delivering the goods to a third person on a forged authority or without authority, or by issuing a warehouse receipt representing the goods to be in his possession or control when they have ceased to be so.
The exact measure of compensation due to a plaintiff whose goods have been wrongfully converted may be merely nominal if the wrong is technical and the defendant can return the goods; it may be limited to the actual damage where the goods can be returned, but the wrong is substantial; but in ordinary cases it is the full value to the owner of the goods of which he has been deprived.
Fraudulent conversion by any person to his own use (or that of persons other than the owner) of property entrusted to him is a crime in the case of custodians of property, factors, trustees under express trusts in writing (Larceny Act, 1861, ss. 77-85; Larceny Act, 1901).
The law of Ireland, of most British possessions, and of the United States, follows that of England as to the civil or criminal remedies for conversion.
The term “conversion” is also used in English law with reference to the rule of courts of equity which, in certain cases (following the maxim of treating as done what ought to have been done), treats as converted into personalty land which has been directed so to be converted by a will, contract or settlement, or as converted into land personalty which has been by such instrument directed to be applied for purchase of realty. The rule is also applied where a vendor of land dies between the making of the contract of sale and its completion by conveyance of the land. The importance of the rule lies in the different destination of realty and personalty under the laws relating to inheritance and succession.
See Bullen and Leake, Precedents of Pleading (3rd ed., 1868, 6th ed. by Dodd and Chitty, 1905); F. Pollock, on Torts (7th ed., 1904); Clerk and Lindsell, on Torts (3rd ed., 1904); Lewin, on Trusts (11th ed., 1904); Jarman, on Wills (5th ed., 1893); Dart, Vendors and Purchasers (11th ed., p. 301). (W. F. C.)
CONVEX (Lat. convexus, carried round, rounded, from con-,
with, and vehere, to carry), a term for the exterior side of a
curved or rounded surface, as opposed to “concave” (Lat. con-,
and cavus, hollow), the inner surface.
CONVEYANCE, primarily the act or process of conveying
anything. The verb “to convey,” now used in the senses of
carrying, transporting, transmitting, communicating or handing
over, originally had the same meaning as “convoy” (q.v.),
i.e. to accompany, a meaning which still survived in the 18th
century. Like “convoy” it is ultimately derived from the Late
Lat. conviare (not from convehere), but through the old Norman
French form conveier, which in central France passed into the
form convoier, mod. Fr. convoyer, whence “convoy.” Apart
from the general sense given above the word conveyance is now
used in three special senses: (1) a carriage or other means of
transport, (2) in law, the transference of property by deed or
writing between living persons, and (3) the written instrument
by which such transference is effected. (See Conveyancing.)
CONVEYANCING, in English law, the art or science of conveying
or effecting the transfer of property, or modifying interests
in relation to property, by means of written documents.
In early legal systems the main element in the transfer of property was the change, generally accompanied by some public ceremony, in the actual physical possession: the function of documents, where used, being merely the History. preservation of evidence. Thus, in Great Britain in the feudal period, the common mode of conveying an immediate freehold was by feoffment with livery of seisin—a proceeding in which the transferee was publicly invested with the feudal possession or seisin, usually through the medium of some symbolic act performed in the presence of witnesses upon the land itself. A deed or charter of feoffment was commonly executed at the same time by way of record, but formed no essential part of the conveyance. In the language of the old rule of the common law, the immediate freehold in corporeal hereditaments lay in livery, whereas reversions and remainders and all incorporeal hereditaments lay in grant, i.e. passed by the delivery of the deed of conveyance or grant without any further ceremony. The process by which this distinction was broken down and the present uniform system of private conveyancing by simple deed was established, constitutes a long chapter in English legal history.
The land of a feudal owner was subject to the risk of forfeiture for treason, and to military and other burdens. The common law did not allow him to dispose of it by will. By the law of mortmain religious houses were prohibited from acquiring it. The desire to escape from these burdens and limitations gave rise to the practice of making feoffments to the use of, or upon trust for, persons other than those to whom the seisin or legal possession was delivered. The common law recognized only the legal tenant; but the cestui que use or beneficial owner gradually secured for his wishes and directions concerning the profits of the land the strong protection of the chancellors as exercising the equitable jurisdiction of the king. The resulting loss to the crown and the great lords of the feudal dues and privileges, coupled with the public disadvantages arising from ownership of land which, in an increasing degree, was merely nominal, brought about the passing in the year 1535 of the famous Statute of Uses, the object of which was to destroy altogether the system of uses and equitable estates. It enacted, in substance, that whoever should have a use or trust in any hereditaments should be deemed to have the legal seisin, estate and possession for the same interest that he had in the use; in other words, that he should become in effect the feudal tenant without actual delivery of possession to him by the actual feoffee to uses or trustee: In its result the statute was a fiasco. It was solemnly decided that the act transferred the legal possession to the use once only, and that in the case of a conveyance to A to the use of B to the use of or upon trust for C, it gave the legal estate to B, and left C with an interest in the position of the use before the statute. Thus was completed the foundation of the modern system of trusts fastened upon legal estates and protected by the equitable doctrines and practice of the judicature.
But the statute not only failed to abolish uses: it also opened the way to the evasion of the public ceremony of livery of seisin, and the avoidance of all notoriety in conveyances. Other ways, besides an actual feoffment to uses, of creating a use had been in vogue before the statute. If A bargained with B, in writing or not, for the sale of land, and B paid the price, but A remained in legal possession, the court of chancery enforced the use or equitable interest in favour of B. The effect of a bargain and sale (as such a transaction was called) after the statute was to give B the legal interest without any livery of seisin. This fresh danger was met in the very year of the statute itself by an enactment that a bargain and sale of an estate of inheritance or freehold should be made by deed publicly enrolled. But the Statute of Enrolments was in terms limited to estates of freehold. It was allowed that a bargain and sale for a term, say, of one year, must transfer the seisin to the bargainee without enrolment. And since what remained in the bargainer was merely a reversion which “lay in grant,” it was an easy matter to release this by deed the day after. By this ingenious device was the publicity of feoffment or enrolment avoided, and the lease and release, as the process was called, remained the usual mode of conveying a freehold, in possession down to the 19th century.
It was not until 1845 that the modern system of transfer by a single deed was finally established. By the Real Property Act of that year it was enacted that all corporeal hereditaments should, as regards the immediate freehold, be deemed to lie in grant as well as in livery. Since this act the ancient modes of conveyance, though not abolished by it, have in practice become obsolete. Traces of the old learning connected with them remain, however, embedded in the modern conveyance. Many a purchase-deed recites that the vendor is seised in fee-simple of the property. It is the practice, moreover, to convey not only “to” but also “to the use of” a purchaser. For before the Statute of Uses, a conveyance made without any consideration or declaration of uses was deemed to be made to the use of the party conveying. In view of the operation of the statute upon the legal estate in such circumstances, it is usual in all conveyances, whether for value or not, to declare a use in favour of the party to whom the grant is made.
