Hopper v. Haines

18 A. 29, 71 Md. 64, 1889 Md. LEXIS 83

• Court: Court of Appeals of Maryland
• Decided: June 11, 1889
• Status: Published

Opinion

Irving, J.,

delivered the opinion of the Court.

This case was argued orally at the last term of the Court, and a conchtsion was announced, but was after-wards withdrawn, and a re-argument upon notes was ordered in respect to section twenty-two of Art. 53, of the Code of Public General Laws, as added by the Act of 1868, ch. 292, and the effect of the Act of 1870, ch. 279, and subsequent legislation upon it.

The appellant's counsel conducted their case in the lower Court and in this Court, on the theory, that section twenty-two of Article 53, which was enacted by the Act of 1868, was in full force in Harford County, where the transactions took place in the summer and autumn of 1.884, which gave rise to this suit. That view has again been pressed in the re-argument upon notes. After the most careful examination and consideration, we are unable to accept this view.

By the Act of 1868, ch. 292, section twenty-two was added to Article 53, of the Code of Public General Laws, title “Landlord and Tenant,'' to follow section 21. The added section reads thus: “Section 22. In all cases of renting lands wherein a share of the growing crop or crops shall be reserved as rent, said rent reserved shall be a lien on such crop or crops which shall not be diverted by any sale made thereof by the tenant, or by the assignment of the tenant in bankruptcy, or by the process of law issued against the tenant.” This section was given general operation throughout the State, and introduced an entirely new element into the relation of landlord and tenant, which was not allowed to remain a general law any longer than the next meeting of the Legislature in 1870, when, by its chapter 279, section 22, as enacted by the Act of 1868, cli. 292, was,repealed, amended and re-enacted as section 22. The section as amended made advances, also, which were made on the faith of the crops to be grown, a lien in the same way 'as the crop rent, but confined the lien given by the section in all case's to loritten contracts of renting. This section, then, as amended and re-enacted, was, by another section of the law, made solely to apply to the counties of Saint Mary’s, Prince George’s and Charles. The language of the second section of this Act is “the provisions of this Act shall only apply” to the counties just named. We cannot, assent to the view of the appellant’s counsel that by the language “the provisions of this Act shall only apply,” &c., was meant that the repeal of section 22 should only apply to the counties named, and that the amendments supplied by this Act of 1870, would also apply to the counties named in the second section of the Act. If the Legislature had so intended it would not have repealed section twenty-two outright, and in so many words re-enacted section 22, in different language, with different provisions respecting advances on the faith of the crop, and the character of the contract, making all the provisions dependent for operation upon the fact whether the contract was in writing. It did not retain section twenty-two and make a section twenty-three which should only be operative in the counties designated; but in express terms it repealed section twenty-two as- enacted by 1868, and made an entirely new section twenty-two. Being for three counties, it was esteemed a general law to that extent, and was eo nomine, enacted as a section in Article 53, of the Code of General Laws. If it had been intended as a local law merely, and that the repeal was not to he effected as to the residue of the State, it would have been differently framed and made in terms a local law, as would have been very easy. The Legislature had evidently found that as a universal law of the State it was not deemed wise or acceptable. That the purpose of the Legislature was as we decide it to be, and that it was so understood in the State to have done, we note the fact that by the Act of 1876, cli. 384, the public character of the law and general effect of it was recognized by the Legislature in repealing this section 22 again, and re-enacting it, admitting Calvert County to the sphere of its operation. Then, again, in 1884, chapter 67, the same section of Art. 53, of the Code of Public G-eneral Laws, namely, section twenty-two as enacted by the Act of 1876, was again repealed and again amended and re-enated as section 22 of Art. 53, and a proviso was added to the section itself, making it solely applicable to the counties of St. Mary’s, Prince George’s, Charles, Calvert, Anne Arundel and Dorchester, instead of making that provision by separate section, as in the Act of 1870. This Act not only amended the statute in certain particulars, but added Anne Arundel and Dorchester counties to the area of its operation. This was the law when the trover alleged in this cause was committed, if committed as charged; for the Act was made to take effect immediately on its passage, and was approved on the 20th of March, 1884, and then became effective. As further indicating the legislative understanding of the limited effect of the law after the Act of 1870 was passed, and how the counties regarded it, we note the Act of 1886, ch. 182, when it was desired to bring Worcester County within the scope of its operation, did the thing in the same way as the preceding Acts, by repealing section 22 and re-enacting the same, and adding Worcester County to its area of effect. We cannot see how legislative purpose could have been more plainly indicated, nor how it is possible for us to hold that section twenty-two, as enacted in 1868, continued operative in 1884, in Harford County, notwithstanding the inter-veiling legislation of 1810 and 1816 and 1884, which, expressly repeal that section and re-enact it as section twenty-two;, and do not leave section twenty-two intact and make a new section introducing the neiv provisions. To adopt appellant's view we should he forced into declaring, that though the Acts of 1810 and 1884, do in express terms repeal section twenty-two and make a new section twenty-two, still it was not the purpose of the Legislature t¡o do that, and their bungling must he corrected by sifting from the new section twenty-two certain portions for ■ general application in the State, and give the section as a whole only local operation. This would not only he a novel mode of interpretation, hut plainly unnatural, anomalous, and wholly impracticable.

Having reached the conclusion that section twenty-two of the Code, as added by the Act of 1868, was not operative in Harford County after the Act of 1810, the solution of the other questions arising on this appeal, becomes very simple and easy.

The action is trover. The plaintiff declares for three hundred bushels of wheat which shé had stored at the warehouse of Joseph Ross, on the canal at Conowingo, in .Harford County, which the narr. alleged the defendant to have taken and converted to his own use. The husband of the appellee, Mrs. Haines, was the tenant of the appellant's farm in Harford County, and had been for several years, upon a crop-rent. According to appellant's own testimony, for the year 1884, the tenant was, by the contract, to have one-half of the products for his share. The tenant, being indebted to one James S. Chenoworth, made a mortgage to him of sundry articles of jrersonal property, including his interest in a share of the wheat crop growing on the farm rented of appellant for the year 1884, to secure an indebtedness recited in the mortgage as thirteen hundred and nineteen dollars and forty cents. Upon the 29th of January, 1884, decree was obtained for a sale of tlie mortgaged property, to pay the mortgage debt. Trustees were appointed who sold the property on the 29th of April, 1884, to various purchasers. The tenant’s (the mortgagor’s) one-half interest in the wheat crop was sold to the appellee, Mrs. Haines. The sale was reported to the Court under oath of' the trustees, and recited that the purchaser had complied with the terms of sale. The sale, however, had not been ratified by the Court when the act sued for was committed; a fact relied on by appellant, but which, the sequel will show, we do not think can defeat- the action. The wheat was harvested, and the tenant proceeded to divide the same, as had been his habit previously, according to appellant’s own statement, without his supervision or participation. Having harvested and threshed the wheat, the tenant, acting as the agent of his wife, delivered in September, 1884, at Ross’ warehouse, at Conowingo, six hundred and thirty-four bushels, in two piles of three hundred and seventeen bushels each, in a separate parcel or pile — one for the appellant, and the other for the appellee. He left the wheat in the care of Mr. Ross; one pile for appellant, and the other for appellee, by her direction. Appellant’s wheat was also put with Ross by appellant’s direction. Appellant took his own wheat away by boat to Baltimore, and against the remonstrance of Ross, who told appellant’s agent it was Mrs. Haines’ wheat — he took her wheat also ; and it is for the value of that wheat of appellee, so taken by appellant, that she sued for conversion.

There were three bills of exception taken at the trial. The first was to the refusal of the Court when the plaintiff rested his case, to say that there was no legally sufficient evidence to justify recovery. The second was to the admission of certain testimony offered by the plaintiff' in rebuttal, and the third embraced the prayers. As our decision upon the prayers will cover the whole case, we will not examine the exceptions seriatim. All the prayers of the appellee Avere granted, all those of the appellant were refused. The defendant’s (appellant’s) prayer at the conclusion of the plaintiff’s evidence, and his two prayers at the conclusion of the case, all, to some extent, involved the idea, that the appellant had a lien on the whole crop for his rent, and, therefore, was not ansAverable in trover to the appellee for taking what was intended, when left with Mr. Ross, for her share as purchaser of her husband’s interest. That aspect of the case has already been fully considered, and we have already said that the Act of 1868 had been repealed, and its provisions were not in force in Harford County, and,, therefore, that contention of the appellant, in defence of his taking the wheat, was not tenable. He, also, contended, and by his second prayer directly put the proposition, that if he got but one-half the crop, in fact, he was not liable to the suit brought. In support of that view, he had offered some, testimony as to how much wheat was raised, and tending to show that the pile left for him at Ross’ was not his full share, and that the wheat had not all been sent to ConoAvingo, to the care of Ross. - For the purposes of this suit that contention was immaterial, and not cognizable in this suit under the pleadings. The tenant tendered rent. He divided the crop as he had been alloived to do theretofore, and delivered a portion to the purchaser of his interest, and a like portion to the appellant. If any remained undelivered, he was entitled to his share- of it, hut he Avas not entitled to take the purchaser’s half of that which was divided and appropriate to himself, so that the Court was clearly right in overruling that contention. The plaintiff offered four prayers, all of which were resisted by the appellant.

The first two related to evidence, which, by them, the jury was told they could not consideras affecting their verdict. The first related to the quantity of wheat raised on the farm that year, which was clearly immaterial in a suit for taking wheat actually delivered to the plaintiff on account of her purchase of the tenant’s share.

The second prayer directed the jury that they could not regard the statement of the appellant that the tenant had agreed to let him have all the wheat that year for arrearages of years before. It was not pretended that there was any written agreement to that effect, and the tenant’s share was regularly mortgaged, and the plaintiff’s title derived by purchase under decree for closing that mortgage. H was perfectly clear, therefore, that the claim of the appellant, which was, in fact, denied by the tenant, could not interpose any barrier to recovery in this suit.

The third prayer of the plaintiff, in effect, instructed the jury that if they found the tenancy to exist, and that tenant’s share was one-half of the crop, and that tenant’s interest or share had been sold to the plaintiff, and that after a division by the tenant a portion was delivered at Eoss’ for plaintiff', and that defendant took it, then they should find for plaintiff, although they might find the tenant owed defendant, and the wheat was not fairly divided. This prayer was objected to on various grounds, some of which have already been disposed of. But the right of the plaintiff to sue and recover in this case "was especially rested on the contention that she had not paid for the wheat she bought, and the trustees’ report had not been ratified. So far as the defendant was concerned, these facts, though true, were immaterial. The plaintiff rvas in possession, and was purchaser, and if the trustees had waited for the purchase money it was no • matter to the appellant. He could not, as against the plaintiff', who had the possession and the right to the possession, set up title to the wheat he had taken in another person. Harker, et al. vs. Dement, 9 Gill, 7; Mayor, &c., of Baltimore vs. Norman, 4 Md., 359; Thomas vs. Sternheimer, 29 Md., 268. The appellant testified to the taking and selling the wheat, and he was clearly answerable in trover. Dietus vs. Fuss, 8 Md., 148.

(Decided 11th June, 1889.)

The fourth prayer of the plaintiff fixed the measure of .damages to be the value of the wheat when taken, with such interest as the jury might think proper to allow under the circumstances. There can, certainly, no fault be found with this instruction by the appellant. It is the settled law in this State, that the measure of damages is the value of the property taken, with interest from the taking to the time of verdict, where there has been a total deprivation of property, as was the case here. Thomas vs. Sternheimer, 29 Md., 268; Corner vs. Mackintosh, 48 Md., 389. We find no error, and the judgment must be affirmed.

Judgment affirmed.

A petition was filed on the 5th of October, 1889, in behalf of the appellant, by his counsel, William M. Marine, A. E. Musselman and George Yellott, asking for a rehearing of the foregoing case. The prayer of the petition was denied, and in support of the denial the following opinion of the Court was delivered:

Irving, J.

In overruling this motion for re-argument we take occasion to say, that in making the decision in this case, we did not overlook section 137 of Art. 16 of the Code of 1860, as counsel suggest in their brief for a rehearing. Although there had been no formal ratification of the trustees’ report of sale, we regarded Mrs. Haines as being rightfully in possession of the wheat, and having'such qualified property therein as would sustain the action of trover against the appellant, who had not the shadow of a right to the wheat. It seemed to us so clear that her position fully met the requirements of the law, and' especially the decision of this Court in Dungan, Adm’x vs. Mutual Ben. Life Ins. Co. of N. J., 38 Md., 249, that we did not deem it necessary to advert to that aspect of the case as presented hy counsel. She had been sold the wheat in its growing condition, and had reaped it and caused it to be threshed; and was about to market it when the same was taken and converted hy the appellant. The sale was made to her in April, and it was taken and converted hy the appellant in August following. Section 137 of Article lf>, does require a ratification of the sale before the title is absolutely perfected ; hut the sale is not void, as argued hy counsel. At most it is only voidable, if successful objection be made, for fatal irregularly, fraud or misrepresentation. Ho exceptions had been filed. There was no fraud. Hobody interested had assailed it for any reason. Having been put in possession hy the trustees, they' had no longer a right of possession, and could not resume possession without an order of Court on good cause shown. In auction sales of goods hy' trustees on assignment, or hy order of Court, goods are always delivered immediately'’ on compliance with the terms of sale. In such cases, and in sales of perishable personalty, the sale has always been regarded as sufficiently complete to justify an immediate disposition of the property by' the purchaser at the trustees' sale so as to pass title. Any other rule would he ruinous to creditors and others, if fish, oysters, small fruits and other perishable articles could not he sold hy delivery. As between the Court, the trustee and the purchaser at the trustee's sale, the sale is liable to be reviewed, and for collusion between trustee and purchaser, misrepresentation of trustee or other good ground, a person interested might secure the sale to he set aside ; so that wrong might not be done. In this case the trustees had reported the sale, and stated under oath, that the several purchasers had all complied with the terms. If that was not in fact true, the trustees had accepted Mrs. Haines as abundantly answerable and good without security. They had made themselves answerable; and they so understand and are, as her counsel, prosecuting this suit. So far as the appellant is concerned, it is immaterial whether Mrs. Haines had fully complied with the terms of sale or not. He has no right to except to it here. Mrs. Haines had been 'in rightful and unquestioned possession. so long, and having expended her money in reaping and threshing the wheat, she must be held to have such special or qualified property, as supports the action she brought for the appropriation and conversion of the wheat to his use by the appellant. The trustees certainly could not have brought trover. They had not possession, or the right to it necessary to the action. Had they brought the suit, the case of Gordon vs. Harper, 7 Durn. & East, (Term R.,) 9, would have been authority against them, but it does not apply to Mrs. Haines as appellant’s counsel seem to think. In that case the landlord had leased the personalty and had no possession or right to it. The case of Pocock vs. Hendricks, 8 G. & J., 421, so strongly relied on by motor’s solicitors, does not conflict with the view we have taken in this case. All that the Court decided in that case was, that if the plaintiff’s possession had been fraudulently acquired, he had no right to maintain the action of trover, because his possession which was disturbed was not a rightful possession. Fraud had tainted it and vitiated it. The finder of a_ jewel in Armory vs. Delamirie, 1 Strange, 505, was held to have the right of trover against any one but the true owner, and recovered full value. In Bigelow’s Leading Oases on the Laiv of Torts, page 425, it is-said that “Avhenit is said that the plaintiff must have an absolute or special property in tire goods, tire latter term is used to denote the possession either of one who has a qualified interest, or of one who has only the bare possession, since this of itself gives him the right to the property as to all persons except the owner.” The possession here spoken of, is of course, a rightful possession, and such a possession as gives a special property. Bigelow further adds that the statement of the law as there laid down is so, because of the case of Armory vs. Delamirie, which is the principal case. We can find nothing in the authorities cited and relied on by motor’s counsel, which is subversive of the view we entertained in deciding the case and which we here express.

(Filed 19th December, 1889.)

The motion for rehearing must be denied.