Sallee v. Arnold

• Decision Date: 31 July 1862
• Citation: 32 Mo. 532
• Parties: ROBERT SALLEE, Respondent, v. WILLIAM ARNOLD et al., Appellants.
• Court: Missouri Supreme Court

32 Mo. 532

ROBERT SALLEE, Respondent,

v.WILLIAM ARNOLD et al., Appellants.

Supreme Court of Missouri.

July Term, 1862.

Appeal from Callaway Circuit Court.

Knott & Hough, and Ryland & Son, for appellants.

I. The question in this case is whether the slaves of an infant femme, which have been hired out by her guardian before the marriage, pass to her husband jure marito where the marriage and the death of the wife both take place during the term, and while the slaves are de facto in the possession of the lessee; and the affirmative of this proposition can only be sustained on the hypothesis that the possession of the guardian is the possession of the ward, and that the possession of the lessee is the possession of the guardian, even where the hiring is for a definite time and upon a valuable consideration. This theory is utterly incapable of support in reason or law, the well settled principle being that the general property draws to it possession only in cases where there is no intervening adverse right of enjoyment; and when the general owner has conveyed to another the exclusive right of present enjoyment and possession of a personal chattel, the possession is in the lessee or bailee, and he may maintain trespass even against the owner of the reversionary interest for an injury done to the property before the expiration of his lease. (2 Gr. Ev. § 614; ibid, § 616; 1 Ch. Pl. 169; 8 Johns. 435; 2 Pick. 122; 11 Johns. 156; 3 Scammon, 10; Anderson v. Kincheloe et al., 30 Mo. 520.)

This principle, that the possession of a personal chattel hired to one for a certain term, and upon a valuable consideration, is the possession of the bailee or lessee, and not of the owner of the reversionary interest, is supported by the simplest deductions of common reason; for the bailee who has hired the property for a price, has a vested title to the beneficial use and enjoyment of it, for which he has contracted and paid. Recognizing the correctness of the doctrine that the possession of the hired chattel is in the lessee for the term, Mr. Justice Ewing, in the case of Anderson v. Kincheloe & Dickerson, above cited, in which it was decided that the lessee of slaves for a year could transfer possession to another, and that other maintain an action against the ownen of the reversionary interest for depriving him of possession o them, remarks that, “the hiring for a year being shown, and the delivery of possession pursuant thereto being admitted Gratz, (the lessee of the slaves) was the owner of the slaves fo that period, and held them with all the rights incident to that kind of special ownership.”

II. In order to entitle a party to maintain trespass for an injury to property he must have possession, for the very gist of the action is the injury to plaintiff's possession; but it is settled beyond controversy that, if the general owner part with his possession to a bailee, and the bailee have the right to the exclusive use of the thing at the time the injury was committed, the general owner cannot support trespass. Therefore the general owner is regarded in law as not having possession. (1 Ch. Pl. 169; Roussin v. Benton, 6 Mo. 592; 8 Pick. 235; 4 T. R. 489; 7 ibid, 9; 5 Vt. 274; 9 Cowen, 687; 9 Metcalf, 233; 1 Johns. 511.)

III. If, then, the doctrine as laid down in the authorities be correct, that the possession of the lessee or bailee of a personal chattel who has the right to the exclusive use thereof during the time for which he has hired it, is not the possession of the general owner, it follows that the possession of Nunnelly, the bailee in this case, was not the possession of Lydia Ann Swearingen nor of the guardian Arnold. Even granting it to be true that the possession of the guardian is the possession of his ward, but that she had simply a right to possession in reversion, and further, that the cases of Whitaker v. Whitaker, 1 Dev. 310, and Granbury v. Mehoon, ib. 456, relied upon by respondent, are not authority in this case, because they proceed solely upon the erroneous theory that the possession of the lessee or bailee entitled to the exclusive use of the slaves, is the possession of the general owner. The other cases relied upon by respondent are not analogous. There had been no intervention of an adverse right of enjoyment in either of them.

IV. The possession of the slaves in controversy being in Nunnelly, (the lessee,) and not in Lydia Ann Swearingen at the time of her marriage, and not having been reduced to possession by Sallee, her husband, before her death, but remaining until that time in Nunnelly, Sallee has no right to them, for marriage is a gift to the husband only of such of her personal estate as is in possession of the wife; and as to her choses in action, or mere rights to receive money or property, the law only gives the husband a right to them on condition that he reduce them to possession during coverture. (Leakey v. Maupin, 10 Mo. 372; Wood v. Simmons, 20 Mo. 370.)

V. The slaves in controversy were not only never in possession of Sallee during his wife's life-time, but he did not even have a present right of action to recover them; the right of action was future, and would necessarily remain so until the expiration of Nunnelly's lease. (See cases of Walker v. Walker, 25 Mo. 367; Leakey v. Maupin, 10 Mo. 368; Wood v. Simmons, 20 Mo. 363.)

Ansell and Gardenhire, for respondents.

On the facts agreed the law is with the plaintiff--

I. Because personal property of a female ward in the possession of her guardian, is not a chose in action but property in the possession of the ward, and on her marriage vests eo instanti in the husband. (Chambers v. Perry, 17 Ala. 726; Magee v. Toland, 8 Porter's Ala. 36.)

II. The fact that personal property is held by the guardian in common for several wards does not reduce the interest in each to a chose in action; but as to each, it is regarded as property in possession. (17 Ala. 726.)

III. Where personalty remaining in the hands of a former guardian of a femme covert came into the possession of her husband, who was her administrator, after her death, it was held that the marital right attached. (Davis v. Rhame, 1 McCord's Ch. 191, 193.)

IV. Where the slave of a femme sole was hired for a year, during which time she married, and her husband died, the slave was held to vest in the personal representatives of the husband. (Whitaker v. Whitaker, 1 Dev. 310; Granbury v. Mehoon, 1 Dev. 456; Pettijohn v. Bensley, 4 Dev. 512.)

V. Where the wife before marriage was a joint tenant of slaves, which went into the possession of her co-tenant in the wife's life-time, held, that this was such a possession by the wife as that the marital rights of her husband would attach, the possession of one joint tenant being the possession of another. (Burgess v. Heape, 1 Hill's Ch., S. C., 404.)

VI. Marriage is, by law, an unqualified gift to the husband of all the personal estate of the wife in her possession at the time of its taking place; and if he should die an hour after the marriage, having received a large personal estate from the wife, all that estate, except what our law allows to her as dower, would go to the kindred of her husband, and not to the wife. But as to choses in action, or mere rights to receive money or property from another, the law only gives the husband a qualified right to them, viz., on condition that he reduces them to possession during coverture; and if he fails to do this, if the wife survive, she will be entitled to them. (Leakey, adm'r, &c. v. Maupin, 10 Mo. 372.)

VII. If personal property of the wife, other than choses in action, be in such a situation that the husband may lawfully take it into his hands at any moment, this is a sufficient reduction into possession, although he should not take it into his actual custody. (Walker v. Walker, 25 Mo. 367.)

VIII. A husband is not entitled under our statutes to the choses in action of his wife not reduced into possession during her life. As where the wife, being entitled to a distributive share of her father's estate, died before the same was received by the husband, he is not entitled to such share, but the same will go to her heirs. (Gillett v. Camp, 19 Mo. 404.)

IX. In the case of Walker's administrator against Walker, the court remarks: “As to the point that the property, other than choses in action, never was reduced into possession during coverture, we are of the opinion that it is unsustained by the law arising from the facts of the case. In contemplation of law, property is reduced into possession when it is in such a state that the husband can lawfully take it into his hands if he will. It is not necessary that he should have actually taken it into his custody; if he has a right to do so at his will, it is enough,” &c. If the property was in the possession of the wife, then the possession of the wife was the possession of the husband. (Walker's adm'r v. Walker, 25 Mo. 375.)

X. Where a father by will gave to his son a slave until the slave attained the age of twenty-one years, and the remainder of the life of the slave to his daughter, then a married woman; held, that the right of the husband to the slave was perfect on the assent of the executor to the legacy; that the possession of the tenant of the particular estate was the possession of the tenant in remainder, and that the right to the slave survived to the husband upon the death of the wife before the termination of the particular estate. (Pitts v. Curtis, 4 Ala. 350; 3 Litt. 275, 283-4.)

XI. Personal property is divided into things in possession or in action, and property in things in possession is either absolute or qualified.

XII. A bailment is a qualified, limited or special property in a thing capable of absolute ownership.

Neither the bailor nor the bailee of a personal chattel has an absolute property in the chattel. The property of both is qualified, and each of them is...