Borden v. Croak , 1889 Ill. App. LEXIS 408 ( 1889 )

Gaknett, P. J.

William Borden leased to Thomas P. Croak, during his lifetime, a store in Borden Block, Chicago. 'The written lease provided that the lessor should have a valid and first lien for the rent, accruing and to accrue, upon the property of the person or persons liable therefor, and the rent was made payable monthly, in advance. Croak died June 3, 1886, two months’ rent being then due and unpaid. He was a merchant tailor, and kept upon the premises a stock of merchandise, used in his business, a large part of which was there when he died.

By agreement with the administratrix of the estate, Borden leased the premises in September following to another tenant, claiming at the time that he waived none of his rights under the original lease. In Hovember, 1886, he filed his claim in the Probate Court against Croak’s estate, for the June and July rent (waiving his claim for all subsequent rent), and petitioned the court that the rent for those two months should be declared a first lien upon the assets in the hands of the administratrix. The assets were not sufficient to pay the widow’s award, and the contest is therefore between her and the. lessor. It is admitted that the alleged lien is based solely upon the stipulation in the lease. The generality of the terms supposed to create the lien, can not escape notice. Ho property in particular is described, nor is the locality given. If we follow the construction contended for by appellant, a secret lien was created on all property, of every description, then owned or thereafter acquired, in any quarter of the globe, by the lessee.

It seems scarcely necessary to say that so broad a scope should not be given to the words of the lease, if it can be avoided without violence to the manifest intention of the parties. The word “ property ” refers, in an abstract sense, to ownership, title, estate, right, and, in a concrete sense, to the thing itself, which is owned. Anderson’s Dictionary of Law, 835. If no terms are used conducting the mind to future acquisitions, the word “ property ” refers to present ownership only.

In common acceptation “ property ” means that which is susceptible of present possession or enjoyment. That which is to be acquired is not property. The means by which its acquisition is anticipated, a contract for example, may vest a present valuable right, but can not, with any regard for the properties of language, be considered as the thing to be obtained. The word is never used to indicate a mere hope, or expectation of having property. Ho rational man thinks he has property merely because he lives in expectation of having some. If the intention of the parties was that the security should extend to subsequently acquired property, that intention ought to have been clearly expressed. Tapfield v. Hillman, 6 Man. & Gr. 245.

We think the fair interpretation of the clause in the lease is, that it was intended to operate only on the property then owned by the lessee, and as the record fails to disclose that any of the assets (consisting of a stock in trade) which come into the hands of the administratrix, were owned by him when the lease was made, the case of appellant "was not made out. Hamilton v. Rogers, 8 Md. 301. But if this conclusion is not correct there is another reason why the alleged lien can not be sustained. In any view of the matter appellant’s lien is of an equitable, not of a legal character.

The property upon which appellant is asking for the enforcement of a lien must be regarded as after-acquired property, and if he can reach any property, his right to do so is subject to this limitation, the instrument creating the lien must identify the property. Bispham’s Principles of Equity, 217; Jones on Chattel Mortgages, Sec. 172 a; Morrill v. Hoyes, 58 Md. 458.

If it is not identified, itps void for uncertainty. In Tadman v. D’Epineuel, 20 Ch. D. 758, it was held that an instrument purporting to charge “ all my present and future personalty ” to secure an indebtedness, created a lien on the personal property owned by the debtor at the time the instrument was executed, but was inoperative as to property he afterward acquired, because of the absence of identification.

In Belding v. Reed, 3 Hurl. & Colt. 955, the deed conveyed certain specified personal property, with a general clause added for the conveyance of all the grantor’s other personal property upon or about his house, farm or premises, at Reedliam or elsewhere, in the kingdom of Great Britain, and it was decided that so far as the general clause ivas concerned, the conveyance was a nullity. The same rule is recognized in Lazarus v. Andrade, 5 Com. Pl. Div. 318, and it is there considered a material point, in such cases, that neither the character of the property nor its whereabouts is indicated, and there is nothing to ear-mark it.

The principle of these authorities we believe to be sound and not in conflict with Webster v. Nichols, 104 Ill. 160, and Sumner v. McKee, 89 Ill. 127. The order of the Circuit Court is affirmed.

Order affirmed.