Wilson v. Wilson

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 ⁸ 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. ⁹ 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 ¹⁰ 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 ¹¹ 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 con ¹² sidering, 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 judg ¹³ ment. 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