Dear ODG Colleagues:

 

I’m wondering about rules or prevalent practices pertaining to the following question: May a successful tort plaintiff obtain as part of her remedy a court order directing the defendant to return property of which the defendant has tortiously deprived the plaintiff?

 

For example, suppose D commits fraud against P, thereby inducing P to part with an heirloom that has a market value of $25,000.  P would rather have the heirloom itself than its cash value.  Having proved her common-law fraud claim against D, can P obtain an order directing D to return the heirloom?  On pain of punishment for contempt?   (Both seem sensible to me.)   Is this a routinely available remedy for torts such as conversion and fraud?

 

Now consider a familiar variant on this situation, in which the property is subsequently sold by the tortfeasor to an innocent purchaser.  For example, imagine the same scenario as above, except that, by the time P sues D, D has sold the heirloom to third party T, who did not know, and had no reason to know, that D had obtained the heirloom illegally.   Can one describe T’s purchase as a conversion of P’s property, albeit an innocent one, or does D’s prior dispossession eliminate the basis for a claim of conversion by P against T?   If it could be conversion, can P obtain an order for a return of the property as a remedy for the conversion?   I think it is the case – though without a great deal of confidence – that, insofar as a U.S. court would every grant relief to P against T, it would do so by imposing a ‘constructive trust’ on T.  This probably would not be styled as a tort remedy, but as a remedy in equity that corrects for T’s unjust enrichment at P’s expense.  Does this latter description resonate?   

 

Thanks,

 

JG