Wilson v. Wilson , 37 Md. 1 ( 1872 )

Miller, J.,

delivered the opinion of the Court.

The appellants, Amon and Edward Wilson, and the appellee, James Wilson, were sons of Susannah Wilson, who died in February, 1867, leaving a will executed in December, 1862, by which, after some specific bequests of personalty, she devised and bequeathed all the rest and residue of her estate, to her three sons above named, and appointed James, her executor. The latter accepted the trust, and proceeded at once to discharge it, by procuring letters testamentary, taking possession of the personal property, returning an inventory of the same, delivering over the specific legacies, selling the residue under order of the Orphans’ Court, and passing his accounts, including one distributing the balance after payment of debts and legacies, to the three residuary legatees named in the will. After such administration of the personal estate, Amon and Edward brought this suit against James. The declaration contains two counts, one in trespass for the wrongful taking, and the other, in trover, for the conversion of all the goods and chattels, described in the inventory. Each count contains the averment essential in such actions, of property in the plaintiffs at the time of the asportation and conversión. The defendant besides non cul. pleaded other pleas, averring that his testatrix was in possession of this property as her own at the time of her death, and relying upon his full administration of the same as before stated. To these pleas, the' plaintiffs filed two replications as follows:

1st. That in the year 1859, their mother Susannah Wilson, agreed with the plaintiffs, that in consideration that they would permit her to use, occupy and enjoy certain lands and tenements belonging to them, hut then in her possession, during her life, that they should have and receive, and be entitled to, as their own, all the personal property she fchen had, and -the increase thereof, and the profits of said real estate, except so much as should be .necessary for her support, as well as all the personal property she should have and receive during her lifetime, and be-possessed of at the time of her death; that she would take good care of all said property, during her life, and pay all taxes and expenses of the same, during that period, and that the same should he delivered over to them at her -death ; and that the plaintiffs on their part, and in performance of said agreement, did permit the said Susannah to use, occupy and enjoy, all said real estate, the> lands and tenements aforesaid, for and during her natural life, and did everything on their part to be done and performed according to s.aid agreement, of all which matters, the defendant had notice; and the plaintiffs further aver, that all 'the property in the declaration mentioned was, and became the property of the plaintiffs, by virtue of said agreement, and the performance thereof by them; and they were entitled to have and receive the same at the- death of said Susannah, but the defendant well knowing all the matters and things aforesaid, refused to permit the plaintiffs to have the said property, but seized and appropriated the same, after the death of said Susannah, as is charged in said declaration.

2nd. That the said Susannah in her lifetime, that is to say, on the 4th of March, 1859, in consideration that the plaintiffs would execute a deed conveying to her' certain lands then belonging to them, and then in her possession for and during her natural life, she agreed that she would sell and convey to the plaintiffs, all the personal property then belonging to her and the increase and profits thereof, and all personal property afterwards acquired by her, except so much as might be necessary for her comfortable support during life, and that all the property then owned by her, and afterwards acquired as aforesaid, should be delivered to the plaintiffs at her death, and that they in consideration of this agreement,’ and of the love and affection which they had for their said mother, did execute said deed, and did permit her to hold and possess said real estate during her natural life, by means of which said agreement, and the performance thereof by the plaintiffs, they became entitled to ail the property mentioned in said declaration, of all which matters the defendant had notice; yet the defendant refused to permit the plaintiffs to have and receive any part of said property after the death of said Susannah; but seized and appropriated the same, as stated in said declaration.

The averments of these replications were traversed by the defendant, and on issues thus made up, as well as upon issue joined on the plea of non cul. the case was tried and resulted in a verdict and judgment for the defendant. This appeal is taken by the plaintiffs, and presents for review the rulings at the trial to which they excepted. These are the Court’s qualification of their seventh prayer, the granting of the defendant’s sixth, and the rejection of the plaintiffs’ fifth prayer, and they will be considered in this order. b

By their seventh prayer, the plaintiffs asked the Court to instruct the jury that if they find from the evidence in the cause that it was agreed between the plaintiffs and the said Susannah, in her lifetime, that th,ey should execute the deed of the 4th of March, 1859, offered in evidence, and that in consideration thereof, the plaintiffs upon her death, were to he, and to become the owners of all the personal property she might die owning and possessing, then if the jury further find, that in pursuance of this agreement the plaintiffs executed the said deed, and that she possessed, used and enjoyed, the said real estate during her natural life, and shall further find that the property in controversy was, at the time of her death, her personal property, then the plaintiff's are entitled to recover in this action the value of said property, provided the jury further find the defendant took and sold the same. The Court granted this prayer with the following qualification: “provided that the plaintiffs can only recover for such property as the said Susannah may have’been in possession of at' the date of said contract or contracts, set out in the replications-of the plaintiffs, and the increase of said live property, if they find such contract or contracts were entered into by and between .the plaintiffs and the said Susannah.” This refers us to the contract set out in each replication.

Assuming either of these agreements to he valid for any purpose, it may he treated as a contract of sale, effective, at the time it was made, to pass, as between the parties, the legal title to so much of the property professed to be sold, as the vendor had the power then to dispose of by sale. I'n this view, the parties occupied the relation of vendor and purchasers, and for a valuable consideration, the vendor professed to sell not only all the personal property she then had, hut all she might thereafter acquire, and die possessed of, retaining however, the use and enjoyment of the whole during her life.

With respect to the property she then had, and the increase of such of it as was live property, the contract contains reservations express or implied, similar to those of' the deod in Hope vs. Hutchins, (9 G. & J., 77,) where the Court held it was clear the legal title passed immediately upon the execution of the instrument, and that nothing more than a mere usufructuary interest or right of enjoyment, was reserved to the grantor during her natural life. Upon the authority of that case, the plaintiffs’ title to such property might be sustained if the contract were free from objection on other grounds. It is not however, with that part of the contract we have to deal, but with that clause of it which professes to pass title to the property which the vendor might thereafter acquire during her life. Is that clause operative to pass the legal title to such property, so as to enable the plaintiffs to maintain trespass or trover for its asportation or conversion ? This question has been answered by our predecessors. Upon an able and elaborate review of the authorities, it was decided in Hamilton vs. Rogers, (8 Md., 301,) that a clause in a mortgage of goods in a store conveying not only those then in the store, but whatever might be therein at any time in the course of the mortgagor’s business, was, as to subsequently acquired goods, inoperative for the purpose of enabling the mortgagee to maintain an action at law against a party seizing them. The Court in that case, recognize and adopt the maxim of the common law, that a man cannot grant that which he hath not actually or potentially at the time of the grant. If such a clause in a deed or other written instrument be thus ineffectual, it is hardly necessary to say it can have no greater effect when forming part of a verbal contract of sale. How a Court of Equity would deal with a clause of this character in a mortgage or bill of sale, is not a matter now to be determined, and hence we have nothing to do with the law as established in Pennock vs. Coe, (23 How., 117,) Langton vs. Horton, (1 Hare, 549,) and other cases to the like effect. The immediate question we are now considering, is, in our opinion, conclusively settled by the decision in Hamilton vs. Rogers, and cannot be controlled or affected by anything that fell from the Court in delivering its opinion in Hannon’s Exc’rs vs. Robey, (9 Gill, 440.)

It was suggested by Tindall, Ch. J. in Lumm vs. Thornton, (1 Manning, Granger & Scott, 379,) one of the cases relied on in Hamilton vs. Rogers, that a deed might be so framed as to give the grantee a power of seizing the future personal goods of the grantor as they should be acquired by him and brought on the premises, and the effect of such power has been determined by subsequent decisions. Thus, in Congreve vs. Evetts, 10 Excheq. Rep., 298, a party in order to secure a debt had conveyed by bill of sale, all his household goods, crops of grain, live stock, implements of husbandry and the whole of his personal estate in and about his dwelling house and farm, and the deed declared it should be lawful for the grantee at any time, either in the lifetime of the grantor or after his death to seize and take possession of the property conveyed, and of all such stock, crops, implements and other effects which should or might from time to time be substituted in lieu of those assigned or any part thereof, or which should for the time being, be found on or about the premises, and sell the same at public or private sale for payment of his debt, the balance of the proceeds if any to be retained and paid over to the grantor. Some time afterwards the grantee by virtue of this authority, seized and took possession, among other things, of certain crops of grain then growing upon the land, but which had not been sown until after the execution of the deed. The day after this seizure a prior judgment creditor of the grantor caused a fieri facias to be issued on his judgment and delivered to the sheriff, who, thereunder seized and sold the crops thus in possession of the grantee and paid over the proceeds to the plaintiff in the judgment. The grantee thereupon brought an action at law against the execution creditor for the value of the crops thus levied upon and sold by the sheriff. It was conceded the future crops did not pass by the bill of sale, but the plaintiff contended that having actually taken possession of them before delivery of the writ to the sheriff, he was lawfully in possession, and could bring an action against any one for taking them, and that his title ought to prevail against that of the defendant. This point was decided in his favor and the Court say: ‘£ if the authority given by the bill of sale hod not been executed it would have been of no avail against the execution.” It gave no legal title, nor even equitable title to any specific goods; but tolien executed not fully and entirely, but only to the extent of taking possession of the growing crops, it is the same in our judgment as if the debtor himself had put the plaintiff in actual possession of those crops. Whether the debtor give the possession of a chattel by delivery with his own hands, or point it out and direct the creditor to take it, or tell him to take any he pleases for the payment of his debt by the sale of it, the effect after actual possession is the same.” In the still later case of Carr vs. Acraman, 11 Excheq. Hep., 566, the deed of mortgage contained a similar power but the grantor subsequently assigned all his property to trustees for the benefit of his creditors, and after this the grantee took possession under the power, of all the effects on the premises. The assignment was adjudged an act of bankruptcy, and the assignees in bankruptcy then took and sold the property thus in possession of the mortgagee. The latter then brought trover against the assignees and the question was, could he recover for the property placed on the premises subsequently to the date of his mortgage. The Court held that the property in question, would have passed to the plaintiff' if he had seized it whilst it was the property of the bankrupt, and before he conveyed it to the trustees for the benefit of Ms creditors, but that that conveyance had defeated his title, and Martin, B. said: “ The power of the plaintiff to seize future property was a license and the conveyance by the bankrupt to the trustees operated as a revocation of that-license.” Other authorities, both English and American might be cited to the effect that a deed .or bill of sale may confer a license or authority to seize subsequently acquired property, which, when duly executed, will enure as a grant and vest a title good not only as between the parties, but against third persons claiming under the grantor, but which will nevertheless be defeated by a sale to a bona fide purchaser, or other transfer, before the power has been acted upon. But even if this Court should adopt the law of these cases, and hold it applicable as between the parties to a verbal contract of sale like the present, we fail to find any such power in either of the contracts before us. Neither of them professes to authorize the plaintiffs themselves to seize and take possession of all her personal estate upon the death of their mother. But suppose either contract to be susceptible of a different construction and to contain a license of authority of this character, it was undoubtedly a power to be exercised immediately upon the death of the vendor. It was incumbent upon the plaintiffs then to have executed it by taking actual possession. This was essential to the maintenance of their present action for the alter acquired property. But nothing of the kind is shown to have been done by them; on the contrary it appears the defendant first took possession, after her death, of all the personal effects of the deceased, and he took such possession as executor, under a will which disposed of her entire personal property for the benefit of other legatees besides the plaintiffs, 'executed after the date of the alleged contract under which they claim. They did not act ¡upon the supposition that they had anything to do in execution of a power or license in order to vest in themselves the legal title to any portion of this property. They base their claim and have brought this action upon the ground that the legal title to the whole of it passed to them by the unaided operation of the contract of sale itself, and the performance of their part of it, that is, by performing or paying the consideration they agreed to perform or pay for the property they purchased.

But it has been argued that at least one of these contracts is to be treated as a contract to deliver the property upon the death of the vendor, and hence the question presented is not whether a party can convey property by deed which he has not, but whether he can contract to deliver property at a future time which he has not when he makes his contract. It may be conceded that it is now settled law that a contract for the sale of a specified quantity of goods or a certain number of shares of stock to be delivered at a future day, is not‘invalidated by the circumstance that at the time of the contract the vendor neither has the goods in his possession, nor has entered into any contract to buy them, nor has any reasonable expectation of becoming possessed of them by the time appointed for delivery, otherwise than by purchasing them after making the contract. The Courts have established this law in the supposed interest of trade and for commercial convenience, notwithstanding the admitted fact that such contracts partake of the nature of gambling transactions. But these contracts are executory and no title passes or is intended to pass by them until actual delivery of the goods. Hence if the vendor refuses . to deliver at the appointed time it is very clear the vendee can maintain neither trespass nor trover for the property contracted to be delivered, though the vendor may then have it in his possession, and afterwards sell it to some one else. Not having actual possession, nor any legal title conferring the right of immediate possession, he could maintain neither of these actions. His 'remedy is by an action on. the contract itself, for a breach in refusing. to deliver according to its terms. Assuming therefore, without intimating an opinion to that effect, that a party may verbally contract that all the personal property he may die possessed of, shall at his death be delivered to his vendee, and that such a contract would be binding upon his personal representatives^ the latter upon refusal to deliver could not be sued in trespass or trover.. The form of action against the administrator or executor must in such case, be the samé as against the vendor, if the time of delivery had been fixed in his lifetime, and he had refused. In the case put in argument that a party may bind himself in a penalty to cause his executor to transfer any specific property to the obligee at his, the obligor’s death, the suit must be upon the bond, and not trespass or trover for the asportation or conversion of the property. The form of action therefore is essential to the plaintiffs’ right to recover, if this be ■ construed as a contract for the delivery of the property at the death of their mother. Their seventh prayer to which the qualification we are now considering was added, asserts their right to recover in this action, and that authorizes and requires this Court to determine whether there can be a recovery in the form of action which they have adopted. To meet this difficulty, we understand the brief of the appellants’ counsel to insist, that the replications have changed the form of action in which the declaration was framed, to one for breach of a contract to deliver the property at a future time. We do not so read the replications. They each aver in substance, that by virtue of the contract stated, and performance by the . plaintiffs of their part of it, the property mentioned in the declaration was and became their property, and the conclusion of each is but a reiteration of the averment of wrongful asportation and conversion contained in the declaration. The replications as well as the narr. are in trespass or trover. Taking, therefore, every possible view of the case, we discover no error in the Court’s modification of the plaintiffs’ seventh prayer.

The defendant’s sixth prayer limits the recovery in the same way, and contains the additional proposition that the burden of proof rests on the plaintiffs, to shew what articles among those claimed for, the said Susannah had at the time the said contract was made. There is no error in this. It was incumbent on the plaintiffs to make out their case by proving everything essential to their right to recover. They sue in trespass and trover and charge that the defendant wrongfully carried away and converted their property, consisting of certain goods and chattels specified in the declaration. It was essential to their recovery in this action, that they should offer some proof that the property taken and sold by the defendant or some of it belonged to them, and they could only prove this by showing that it was in possession of their mother at the date of the contract of sale, under which they claimed title. The proposition now under consideration, does not, as we understand it, claim immunity to the defendant for seizing and selling the plaintiffs’ goods, because by their permission they had been so intermixed with others which it was his right or duty to take, as -to prevent identification or separation, or because at the time of taking, they failed to point, out to him their own property, but concedes his liability for all articles so taken which they could prove to the satisfaction of the jury belonged to them by having been in their mother’s possession at the date of their contract with her. It is not a case where a commingling or inter-mixture like that stated in Hamilton vs. Rogers, could in the nature of things have occurred. Without the proof which this proposition requires, the jury would have had before them no standard of damages, and nothing upon which, they could base their verdict. In other words, there would have been an entire failure of proof upon a p.oint-essential to the plaintiffs’ right to recover.

(Decided 4th December, 1872.)

By their fifth prayer, the plaintiffs asked the Court to instruct the jury, that they cannot find a waiver of the rights of the plaintiffs, or either of them, unless they find that they, or one of them, intended to waive such right.' This prayer embodies no facts to which the law of it is to be applied, and we find no facts or circumstances proved in the case, which would admit an application of the law of waiver. It was, therefore, properly rejected for this reason alone, even if it were unobjectionable in other respects. A Court cannot be called upon to settle legal principles which have no relevancy to the case before them; it should confine itself to those questions of law alone which arise upon the facts and circumstances established by the testimony, and which properly belong to the case at bar. 1 Gill, 25. The plaintiffs by the granting of their second and fourth prayers, had the benefit of all the law on the subject of • estoppel which they demanded.

Finding no error in the rulings excepted to by the appellants the judgment must be affirmed, and having disposed of the case in this way, we should be stepping beyond the line of our duty if we noticed any of the exceptions appearing in the record” to have* been taken by the appellee. It was stated by counsel for the appellee, in argument, that a general demurrer was in fact interposed-by the defendant to the plaintiffs’ replications which was overruled by the Court below; but no such demurrer or judgment appears in the record, and hence the questions which would have arisen if that judgment had been presented by the record, on appeal for review, are not before us, and we therefore express no opinion upon them.

Judgment affirmed.