Wilson v. Wilson

• Decision Date: 04 December 1872
• Citation: 37 Md. 1
• Parties: AMON AND EDWARD WILSON v. JAMES WILSON.
• Court: Maryland Court of Appeals

37 Md. 1

AMON AND EDWARD WILSON v. JAMES WILSON.

Court of Appeals of Maryland

December 4, 1872

Appeal from the Circuit Court for Allegany County.

The case is stated in the opinion of the court.

The cause was argued before BARTOL, C.J., STEWART, BRENT, MILLER and ALVEY, JJ.

J H. Gordon, for the appellants.

The questions for the decision of this court are presented by the fifth prayer of the plaintiffs, and the adding of the qualification to their seventh prayer, and by the granting of the sixth prayer of the defendant.

The fifth prayer of the plaintiffs was intended to meet the position taken by the defendant before the jury, that because Amon Wilson, one of the plaintiffs, was present at the sale and made some remarks about the property, that that was evidence of a waiver of the right of the plaintiffs to the property.

The evidence on this point does not show that Edward Wilson was at the sale, or that Amon said or did anything to mislead, or induce the defendant to act differently from what he intended, or that the defendant heard anything that Amon said. There was, therefore, no principle of estoppel in the case to prevent the granting of the fifth prayer. It should therefore have been granted, because a waiver of the right of the plaintiffs is a giving up of a right of property that could only be done by their consent, either expressed or implied, and the principle of estoppel goes on the ground of an implied consent.

The qualification added to the seventh prayer of the plaintiffs and the sixth prayer of the defendant, present two questions:

1. Whether the plaintiffs were limited in their right to recover, to the property which their mother had at the time the bargain stated in the replication was made?

2. And where the onus of proving the identical property which she then had, was upon the plaintiffs?

The case of Hamilton v. Rogers, 8 Md. 314, is relied on by the appellee to sustain the affirmative of both these questions.

But there is a very material difference between this case and that. This is a contest between purchasers under a contract for a valuable consideration, and a party claiming as devisee under the will. That case was between a mortgage creditor and a judgment creditor. In that case the plaintiff claimed strictly under the mortgage from Worley, not only the goods then " in the stores, but whatever may be at any time in the course of said Worley's business."

In this case the contract stated in the first replication is, that in consideration that the plaintiffs would permit their mother to occupy the land during her lifetime, they, the said plaintiffs should have and receive, and be entitled to, as their own property, all the personal property which she, the said Susannah, then had, and the increase and profits thereof, and the profits of said real estate, except so much as should be necessary for her support, as well as all personal property that she should have and receive during her lifetime, and be possessed of at the time of her death, and that the same should be delivered to the plaintiffs at the time of her death.

The one is a conveyance strictly, by which one creditor was preferred to another. The other is a contract made and executed by the plaintiffs by the delivery of the deed, and the consideration to be paid by the mother for the making and performance on their part was, that the plaintiffs should have and receive all the personal property at the death of their mother.

The breach stated in the replication is, that the defendant refused to permit the plaintiffs to have said property, but seized and appropriated it to his own use after the death of his mother.

The question, therefore, in this case, 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. And this is hardly an open question, since the decision of Hibblewhite v McMorine, 5 M. & W. 462, and Mortimer v McCallan, 6 M. & W. 58, adopted by the Superior Court in New York, in Stanton v. Small, 3 Sandf. 230. The principle is also recognized by this court in Hannon v. Rovey, 9 Gill, 446, where they say, "he could have bound himself in a penalty to cause his executor to transfer any specific property to the obligor at his death."

The other question is in regard to the onus of proving what property was upon the premises when the contract was made. Mrs. Wilson had possession of the property of the plaintiffs, and bought other property and mixed with it, and therefore she was bound to keep up the distinction, and her executor cannot stand in a better situation than she would herself.

William Brace, Jr., for the appellee.

The principle announced by the fifth prayer of the plaintiffs cannot be correct, because it makes the effect of a man's acts to depend upon his knowledge of the consequences which the law affixes to his acts, regardless of his intentions or his knowledge of such results. Waiver of a party's right is a deduction of law from his acts, and not from his intentions. A party stands by and sees another sell his property to a third person, and says nothing! He waives his right by his silence, when he ought to have spoken, although he may not have known that it was his duty to speak, and therefore had no intention to waive his right.

The plaintiffs did not in this rejected prayer, group together any facts whatever, and upon those facts ask the court to say to the jury, that the plaintiffs had not waived their right to this property, but impliedly confessing that the facts upon the question of waiver, were against them, if the court should instruct the jury, that a party might waive his right to property by acts and declarations alone, in relation to that property inconsistent with a claim to it, they ask the court to instruct the jury that to these acts and declarations must be united an intention to waive. As the prayer incorporates no facts whatever with it, it is a mere abstract proposition, and as such will not be acted upon by the court.

The qualification added by the court to the seventh prayer of the plaintiffs, and the instruction given by the court in the sixth prayer of the defendant announce the same principle; the sixth prayer, however, embodies a further question as to the burthen of proof. The principle embraced in the qualification and instruction, is, that if the alleged contract between Susannah Wilson, and the plaintiffs, was made on the 4th of March, 1859, they can only recover for such goods and chattels as she owned when the contract was made, and the increase of the live property. This question is settled in Maryland in actions at law, by Hamilton v. Rogers, 8 Md. 301.

The question is one, as to the effect of the grant or contract. The law says it cannot take effect; there is nothing upon which it can operate. It is void. Three particulars are included in a valid sale--a grantor, a grantee, and a thing to be granted. Long on Sales, 3; 4 Kent, 468, marg.

In England and America, a sale not being a contract merely, but a transmutation of the title, cannot take place as to property not belonging to the seller at the time. Bell on Contracts of Sale, 26, 27, marg.

Whatever may be the meaning of the single sentence used by Judge Chambers, in the closing part of the opinion in Hannon v. Robey, 9 Gill, 446, if it is to be construed as in conflict with the opinion of the court in Hamilton v. Rogers, it is overruled.

But a careful reading of that case will show, that it nowhere appears that there was any property which the testator owned at the time of his death, which he had not at the date of the deed. The question therefore, which arose directly in the case in 8 Md. was not properly in issue in 9 Gill.

The last clause of the defendant's sixth prayer, contains the instruction, "that the burden of proof rests on the plaintiffs to show what articles, among those claimed, she had at the time said contract was made."

The theory upon which the plaintiffs' suit is based, is that the defendant is a wrong-doer and trespasser, who seized and converted the property which belonged to the plaintiffs, and with which the defendant had no right. It is true the defendant claimed the property as executor. Whether his claim was rightful, depended upon whether the property was Susannah Wilson's at her death or the plaintiffs'. That depended upon whether she owned it at the time she made the alleged contract. For, in the argument of this question, it must be assumed, that the defendant was, at least, entitled to such of the goods as Susannah Wilson acquired after the making of the contract.

After her death, she could not give information on that subject. The right of the defendant could only begin at her death. The plaintiffs claimed all the property in their suit, and they say in the evidence, before suit brought also. They did not demand of the defendant that which the testatrix had at the time of the contract, and therefore did not ask him to sever or divide the property according to their mutual rights, but bring suit for the whole. How could the defendant be called upon to institute inquiries as to the time when the testatrix acquired the property, when the plaintiffs made no such demand of him?

It was his duty, at least, to take possession of that part of the property which belonged to his testatrix, although it may have been mixed with that of the plaintiffs. This mixture had been allowed by the plaintiffs. Their contract was that she was to keep the property during her life. They should have scheduled the goods at the time the contract was made, and then they would have known their own goods, that is, those she then had at the time the contract was made. H...