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Law of Finders and Prior Possessors


Most casebooks introduce finders through the brief opinion in the case of Armory v. Delamirie, 1 Str. 505, 7 Term R. 396 (King’s Bench, 1722). There a chimney sweep found a piece of jewelry and delivered it to a goldsmith’s shop for an appraisal. The goldsmith’s apprentice removed the stone and then refused to return it to the sweep. The jewelry’s appraisal without the stone was for three half-pence. The goldsmith offered the sweep that sum of money for the jewelry, but the sweep refused to accept and brought an action in trover—for the value of the jewelry—against the goldsmith.

  The Armory court held that “the finder of a jewel, though he does not by such finding acquire an absolute property or ownership, yet he has such a property as will enable him to keep it against all but the rightful owner, and consequently may maintain trover.” 7 Term R. at 398. In this holding, the term “prior possessor” might be substituted for the word “finder”—and the rightful or true owner then stands for any person whose possession is prior to that of the litigating parties.

  The sweep wins this case because he is the prior possessor of the jewel. He could have stolen it from the house whose chimney he last cleaned and, still, as against the goldsmith, he would be the prior possessor, even though the rule of law is that “a thief’s title is void” against the true owner’s. Anderson v. Gouldberg, 53 N.W. 636 (Minn. 1892) (a replevin action for stolen logs); and see Gissel v. State, 727 P.2d 1153, 1156 (Idaho 1986) (stating, “[m]ere possession alone is sufficient to sustain a trespasser’s cause of action for conversion against all but the true owner,” over a strong dissent that a thief should receive no reward for her crime). In the litigation here, the goldsmith is the greater wrongdoer, even assuming that the sweep was a thief.


Suppose that the jewel’s true owner found out about the facts and outcome in Armory and brought a lawsuit against the goldsmith. What might be the theory of such a suit? It might be brought for conversion. Why? Because the goldsmith treated the jewel as his own when refusing to return it, as he was bound to do. And because the goldsmith does not have the jewel itself anymore, the suit will have to be brought for trover (money) rather than replevin (return of the jewel). The complaint says, in essence, “You converted it, you bought it.” In this suit, the court applying the rule in Armory will give judgment for the owner. By paying the judgment, the losing party—here, the goldsmith—acquires the rights in the jewel upon which the owner based his suit—i.e., the right to sue for the conversion of the jewel perpetrated by the goldsmith.

  This goldsmith’s acquisition of the true owner’s rights is an example of the doctrine of subrogation. The owner had a right to sue, sued, and by winning transferred her rights to the defendant goldsmith. Subrogation is a succession to another’s right or claim. It puts another in the place of a person originally holding the claim. By paying the true owner for the jewel, the goldsmith acquired the true owner’s rights.

  Suppose further that the goldsmith uses the right acquired by subrogation to sue the chimney sweep. In this second suit, the goldsmith is here attempting to put the parties back status quo ante.[1] Because (1) the goldsmith now holds some of the rights of the owner, and (2) that owner is the holder of a right to the jewel prior in time to the sweep, the judgment should be given to the goldsmith. Up to now, the goldsmith has run the risk that the sweep will take the money from the Armory suit and move beyond the jurisdiction of the court. Things can be put right by returning the money to the goldsmith. The law should do so.

[1]    This Latin phrase means “the state of affairs at a previous time” and Latinists might say that it should read status in quo ante.

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