I am of the opinion that the plaintiff’s cause of action is not barred by the Statute of Limitations.

It is admitted that the property in controversy was delivered to the defendants by the voluntary trustee of the plaintiff in the month of May, 1873; that the defendants sold it on the 6th of June, 1874; and that the plaintiff did not discover the sale, or the fact that the defendants had got possession from her trustee, until July, 1876.

When the defendants got possession in 1873, by the transaction between them and Baux, they became, under §§ 2233, 2224, and 2243 of the Civil Code, the involuntary trustees of the property for the benefit of the owners, and subject to all the duties, rights, and obligations of that relation. In taking possession of the property, they did not take it by force or fraud from the actual or virtual possession of the plaintiff; it was delivered to them by the voluntary trustee: the taking was, therefore, not tortious.

The possession thus assumed by the defendants continued until they wrongfully deprived the plaintiff of the property by a sale, or wrongfully refused, on demand, to deliver it to him.

At the time that the plaintiff discovered the transaction whereby the defendants had got the possession, the property was not then in their possession. If it had been, it would have been the duty of the defendants, as involuntary trustees of the property, to have delivered it to the plaintiff on demand. Kefusal to do so would have been a breach of duty. Non-delivery to the owner after notice and demand is a conversion. But the defendants had sold the property, and the sale was also a conversion, the plaintiff, however, was ignorant of the sale, and did not discover it until July, 1876. When she did discover it, *563 she had a right to demand of the defendants to replace the property sold, with its fruits, or to account for its proceeds. (§ 2237, Civ. Code.) In cither case, I think, the legal presumption

is, that the owner consents to the custody and use of her property, until she discovers that it had been wrongfully dealt with; and that a conversion took place when, upon that discovery, the trustee refused to deliver or account for it on demand.

In Alvord v. Davenport, 43 Vt. 30 , a person to whom had been let a horse and buggy, left them with a hotel-keeper and •disappeared. The hotel-keeper suspected something wrong, but did not know who or where the owner was, and the owner did not know where his property was. ■ lie advertised for it, but did not discover anything concerning it, until more than five years had elapsed, when he heard that the property was in the possession of the defendant, the hotel-keepor. He went and found it there, and, identifying it as his property, he demanded it. The defendant refused to deliver it, and the owner sued him in trover ; and the Supreme Court of Vermont held that up) to the time of the demand and refusal there was no conversion.

In Wilkinson et al. v. Verity, 6 Law R. C. P. C. 206—“ where goods having been bailed by the plaintiffs to the defendant for safe custody, the defendant rvrongfully sold them, and the pdaintiffs, more than six years after the date of the sale, being ignorant of the fact of its having taken pdacc, demanded the return of the goods, which the defendant refused—it was held, in an action of detinue for the goods, that the Statute of Limitations ran from the date of the demand and refusal, and not from that of the sale, inasmuch as the pdaintiffs, in such a case, though entitled, if they had discovered the sale, to sue immediately for a conversion of the goods, were also entitled to elect to sue upon the breach of the bailee’s duty in the ordinary course, by the refusal to deliver on request.”

I think that the plaintiff in the case in hand was entitled to judgment, and that the judgment of the Court below should be reversed.