Hutchinson, McChesney & Co. v. Ford
| Decision Date | 21 February 1872 |
| Parties | Hutchinson, McChesney & Co. v. Ford. |
| Court | Kentucky Court of Appeals |
APPEAL FROM SCOTT CIRCUIT COURT.
BRECKINRIDGE & BUCKNER, For Appellants.
W. S. DARNABY, For Appellee.
JUDGE PRYOR DELIVERED THE OPINION OF THE COURT.
On the 16th of October, in the year 1867, U. H. Ford rented of A. T. Stevenson his farm in Scott County for one year, the term beginning on the 1st of March, 1868, and ending on the 1st of March, 1869, for the sum of seven hundred dollars, and for the payment of which he executed his note, with the appellee, Frank Ford, his surety. U. H Ford, in order to secure the appellee in his liability as his surety on the note for the rent, executed to him a mortgage on all the crop that might be raised on the farm during the term. The mortgage was executed on the same day the contract of renting took place — viz., on the 16th of October, 1867 — and on that day was recorded in the clerk's office of the Scott County Court. After the execution of the mortgage, and during the term for which the lessee U. H. Ford held the premises, the latter raised on the farm a crop of wheat that was harvested and sold by him or his agent to the appellants, Hutchinson, McChesney & Co., and forwarded to them at their business house in Lexington, Ky.
The appellee, Frank Ford, being compelled to pay the rent, or having been made liable therefor, instituted the present action in equity to foreclose his mortgage, making the appellants, Hutchinson, McChesney & Co., defendants, and alleging their liability to him for the value of the wheat purchased by them of U. H. Ford by reason of his lien created by the mortgage.
Upon the hearing of the cause a judgment was rendered against the appellants, and from which they prosecute this appeal, insisting here, as they did in the court below, that although the appellee's mortgage was properly executed and recorded, still as the wheat for which they are made liable was not then planted or sown no title passed to the appellees as against a subsequent purchaser without actual notice; and this is the essential question in the case.
The elementary writers upon the subject of sales of personal property lay down the doctrine that the thing sold must have either an actual or potential existence in order to pass the title to the purchaser, and in defining what is meant by a potential existence it is said "that things have a potential existence which are the natural product or the expected increase of something already belonging to the vendor."
There may be an agreement to sell all and every species of personal property not prohibited by law, whether the vendor owns it at the time or not; and, although the subject-matter of the agreement has neither an actual nor potential existence, such an agreement is usually denominated an executory contract, and for its violation the remedy of the party injured is by an action to recover damages. In a sale, however, of things personal the title passes to the vendee, and he may maintain an action for the property sold as well as damages for its detention; and in order to vest him with these legal rights the property sold must necessarily have an existence at the time the sale is made. The authorities conflict to some extent on the question presented, and many of the illustrations given in the books are more calculated to confuse than enlighten the mind in the investigation of the principle involved, and still the rule as to what may be the subject of sale can be better understood in the illustrations to be found in the cases cited than by the enunciation of any general principle on the subject. In this case it is fair to presume...
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