Ring v. Billings ( 1869 )

Mr. Justice Lawrence

delivered the opinion of the Court:

The appellant, Bing, on the 15th of August, 1867, sold to the defendant James Billings, his interest in a tract of land, the legal title of which was in one Felix, as a trustee for both parties, subject to the payment of certain sums of money. Ring and Billings executed a written agreement in the presence of Felix, by the terms of which, Billings was to pay the money secured on the land, and Bing was to have one year in which to remove certain wine plants that he was cultivating, amounting, as the evidence shows, to three thousand in number. Felix was verbally authorized by Bing to make the deed to Billings on the payment of the money. The wife of Billings was present at the making of this agreement, and was personally cognizant of its terms. The agreement was made in Kane county, where the land was situated. Billings subsequently went to Chicago to pay the money and procure the deed. Felix wished to make the deed to Billings, in accordance with the instructions of the parties when they were together, but Billings insisted it should be made to his wife, to which Felix finally consented, and it was thus executed. Bing sent a man for the plants within the year, having continued to cultivate them during 1867. Billings was not at •home, but his wife said Bing could not have them, and forbade his agent to take them. Bo question was made as to his being sent by Bing. On this state of facts Bing brought an action of trover against Billings and his wife. The court held the plants were a part of the realty, and that the action could not be maintained.

If Bing had conveyed the land to Billings without a written reservation of the plants, they would undoubtedly have passed with the lands, as we held in regard to trees in a nursery in Smith v. Price, 39 Ill. 29. But here there was a written reservation, and that made the plants, as between Bing and Billings, personal property, quite as much so as if they had been taken from the ground and stored in a cellar. The parties agreed they should be personal property, and Billings, having had the benefit of the agreement, can not now be permitted to escape its obligations. If Bing can not have this remedy for a very plain wrong, the same mode of reasoning would deny him any other. The fact that the deed contained no reservation is immaterial, as it was not made by Bing, nor did he authorize Felix to make it without the reservation. Whether Bing could set up his written reservation against a subsequent deed made by himself not containing the reservation, is a question unnecessary to be decided.

The wife of Billings occupies no better position than he would have held as grantee, since she is a volunteer, and had, moreover, full notice of the reservation. It is said the evidence shows no conversion on the part of Billings, as he was not at home when his wife refused the plants to Bing’s agent. But we think, if the court had permitted the case to go to the jury, they might very properly have inferred from the fact that Billings insisted the deed should be made to his wife, and from her refusal of the plants, that he had the deed thus made with a view of escaping the obligation of his agreement, and that in regard to the plants, she acted under his authority, the more especially as there is no evidence that he has ever in any way dissented from his wife’s refusal, of which he could hardly have been uninformed, as they occupied the land together. It might, moreover, well be held, that the mere fact of procuring the deed to be made to his wife, followed as this was by her claiming the plants, was, in itself, a technical conversion on his part, and as he thereby placed in his wife the title of the land where the plants were growing, she was the proper person on whom to make the demand. He had given her an apparent title which she undertook wrongfully to assert.

For the error in withholding the case from the jury the judgment must be reversed and the cause remanded.

Judgment reversed.