Hall, Justice.
The questions made by this record turn, in a great measure, upon the characters of the securities taken by the plaintiffs for the performance of the lease contract entered into with them by the defendant.
1. The first question made is this: Is the stock of goods contained in the store when the lease was given, and that with which ■ it was' replenished from time to time by the defendant, to be deemed, according to the contract between the parties, as any part of the “ plant ” of the machinery leased? We do not ihink so. “Plant,” as used in this sense, is, according to Webster, the “ fixtures and tools necessary to carry on any trade or mechanical business.” The goods in a promiscuous country store cannot with propriety be denominated either fixtures or tools essential to the conduct of the business of a mill to saw and plane lumber. They are, so far as they have any connection with the milling business, to be taken rather as supplies for the [753] hands and others engaged in the prosecution of the work carried on in the forest, in felling trees and conveying logs to the mill to he sawed into lumber.
2. Nor do we agree with learned counsel for the plaintiff in error that the defendant held the stores in trust for the plaintiff company; nor was he under obligation to keep and return to them an account of sales made of the same. We do not think, therefore, he is chargeable with this duty and can be held accountable for mingling the goods subsequently purchased by him with those he originally bought from the plaintiff, of which it was contended he had charge, or of so confounding them with his own that the line of distinction between the two cannot be drawn; and thus, having thrown upon him all the inconvenience of causing the confusion, and in case of his inability to distinguish his own property, subjecting him to its loss. Code, §331. He was not carrying on this business on their account or for their benefit. The goods were turned over to him to be disposed of as he saw proper, nor was it incumbent on him to keep up the stock; it was optional with him to do this or to let it alone. In this respect, he could do as he pleased; and they retained no power to compel him to act otherwise than according to his own views upon this subject and in relation to that matter. As to the effects left on hand at the close of the lease being the property of the company, that question will more properly come up and be considered upon the main point of contention in this case, and that is, whether, under this contract, the defendant gave the plaintiff a lien upon, or made sales to them of, the property which he expected to acquire subsequently, and which in fact he did acquire after the execution of the lease and his receipt for the property leased, and whether the property thus acquired could be set apart as a homestead and exemption, under the laws of tbiV. State, without first paying them what was alleged to be the proper amount due for the same. At first the stock of [754] goods was treated by them as the defendant’s property, and they sued out a distress warrant for their rent in arrear, and caused it to be levied on it; but when they ascertained that a homestead and exemption had been applied for and allowed, and that the laborers had levied executions founded on foreclosures of liens on the stock of goods, they dismissed the levy made on their distress warrant and abandoned the proceeding, and instituted trover to recover the goods set apart in the exemption to the defendant. They did not claim that the defendant’s undertaking amounted to a mortgage upon goods “in bulk,” but “changing in specifics” (code, §1951), but that the title to the goods, as well those in possession as those thereafter to be acquired, was to be conveyed to them as .a security for the performance of defendant’s covenants. They endeavor to obviate the legal difficulty that exists as •to the conveyance of after-acquired property by an appeal .to Lord Bacon’s maxim that, “ although the grant of a future interest is invalid, yet a declaration precedent may be made which will take effect on the intervention of some new act.” (Broom’s Maxims, 497). The' first branch of .this maxim relates to the sale and conveyance of a future interest, which cannot, as a general rule, under the law, be affected, and about which there is no dispute. It is upon the application of the latter branch of the maxim that” the question is made.
Free access — add to your briefcase to read the full text and ask questions with AI
Hall, Justice.
The questions made by this record turn, in a great measure, upon the characters of the securities taken by the plaintiffs for the performance of the lease contract entered into with them by the defendant.
1. The first question made is this: Is the stock of goods contained in the store when the lease was given, and that with which ■ it was' replenished from time to time by the defendant, to be deemed, according to the contract between the parties, as any part of the “ plant ” of the machinery leased? We do not ihink so. “Plant,” as used in this sense, is, according to Webster, the “ fixtures and tools necessary to carry on any trade or mechanical business.” The goods in a promiscuous country store cannot with propriety be denominated either fixtures or tools essential to the conduct of the business of a mill to saw and plane lumber. They are, so far as they have any connection with the milling business, to be taken rather as supplies for the [753] hands and others engaged in the prosecution of the work carried on in the forest, in felling trees and conveying logs to the mill to he sawed into lumber.
2. Nor do we agree with learned counsel for the plaintiff in error that the defendant held the stores in trust for the plaintiff company; nor was he under obligation to keep and return to them an account of sales made of the same. We do not think, therefore, he is chargeable with this duty and can be held accountable for mingling the goods subsequently purchased by him with those he originally bought from the plaintiff, of which it was contended he had charge, or of so confounding them with his own that the line of distinction between the two cannot be drawn; and thus, having thrown upon him all the inconvenience of causing the confusion, and in case of his inability to distinguish his own property, subjecting him to its loss. Code, §331. He was not carrying on this business on their account or for their benefit. The goods were turned over to him to be disposed of as he saw proper, nor was it incumbent on him to keep up the stock; it was optional with him to do this or to let it alone. In this respect, he could do as he pleased; and they retained no power to compel him to act otherwise than according to his own views upon this subject and in relation to that matter. As to the effects left on hand at the close of the lease being the property of the company, that question will more properly come up and be considered upon the main point of contention in this case, and that is, whether, under this contract, the defendant gave the plaintiff a lien upon, or made sales to them of, the property which he expected to acquire subsequently, and which in fact he did acquire after the execution of the lease and his receipt for the property leased, and whether the property thus acquired could be set apart as a homestead and exemption, under the laws of tbiV. State, without first paying them what was alleged to be the proper amount due for the same. At first the stock of [754] goods was treated by them as the defendant’s property, and they sued out a distress warrant for their rent in arrear, and caused it to be levied on it; but when they ascertained that a homestead and exemption had been applied for and allowed, and that the laborers had levied executions founded on foreclosures of liens on the stock of goods, they dismissed the levy made on their distress warrant and abandoned the proceeding, and instituted trover to recover the goods set apart in the exemption to the defendant. They did not claim that the defendant’s undertaking amounted to a mortgage upon goods “in bulk,” but “changing in specifics” (code, §1951), but that the title to the goods, as well those in possession as those thereafter to be acquired, was to be conveyed to them as .a security for the performance of defendant’s covenants. They endeavor to obviate the legal difficulty that exists as •to the conveyance of after-acquired property by an appeal .to Lord Bacon’s maxim that, “ although the grant of a future interest is invalid, yet a declaration precedent may be made which will take effect on the intervention of some new act.” (Broom’s Maxims, 497). The' first branch of .this maxim relates to the sale and conveyance of a future interest, which cannot, as a general rule, under the law, be affected, and about which there is no dispute. It is upon the application of the latter branch of the maxim that” the question is made.
“It remains then,” says Mr. Broom (Broom’s Legal Maxims, 500),“ to consider the second part of Lord Bacon’s rule above stated, viz. that a declaration, if followed by some act or conveyance, may be effectual in transferring property not actually in possession of the party at the time of making such declaration. For instance, a power contained in an indenture to seize future crops, if unexecuted, would be of no avail against an execution levied, as giving no legal or equitable title to any specific crops; yet if the power.be subsequently executed by the grantee taking possession of the then growing crops, the seizure will be [755] good as against an execution afterwards levied; for the act done by the grantor is sufficient to give effect to the antecedent declaration, within the scope and meaning of Lord Bacon’s maxim. Further, in commenting on the rule before .us, Lord Bacon thus exemplifies the qualification with which it is to be received: ‘If,’he says, 4 there be a feoffment by a disseisee and a letter of attorney to enter and make livery of seisin, and afterwards livery of seisin is made accordingly, this is a good feoffment, although the feoffor had a right only at the time of making the feoffment; the reason assigned being that a deed of feoffment is but a matter of declaration and evidence, and there is a new act, that is to say, the livery subsequent, which gives effect and validity to the prior conveyance.’ In like manner, ‘if I grant unto J. S. authority by my deed to demise for years the land whereof I am now seized, or hereafter shall be seized, and after I purchase lands, and J. S., my attorney, doth demise them, this is a good demise, because the demise of my attorney is a new act, and all one with a demise by myself; ’ and ‘ where by deed indented a man represents himself as the owner of an estate, and affects to convey it for valuable consideration, having at the time no possession or interest in the estate, and where nothing therefore can pass, whatever be the nature of the conveyance, there if by ,any means he afterwards acquire an interest in the estate, he is estopped, in respect of the solemnity of the instrument, from saying, as against the. other party to the indenture, contrary to his averment in that identure, that he had not such interest at the time of its execution.’ In a modern case also, we read that ‘ At law, an assignment of a thing which has no existence, actual or potential, at the time of the execution o"f the deed, is altogether void. But where future property is assigned, and after it comes into existence, possession is either delivered by the assignor, or is allowed by him to be taken by the assignee, in either case there would be the novus actus interveniens of the maxim of Lord Bacon, [756] and the property would pass.’ ” Again, this same author says, “We may conclude accordingly that, although, subject to the restrictions above stated, a grant of goods which are not in existence, or do not belong to the grantor at the time of executing the deed, is void, yet the grantor may ratify his grant by some act done by him with that view, after he has acquired the property in the goods, or by some act indicating his intention that they should pass under the deed already executed.” There is much moré to the same effect in this author. See passim, pp. 498 to 563, inclusive.
It does not strike us that the defendant consented, at the time of the levy of this distress warrant or subsequently, to the party’s going-into possession of this property. On the contrary, he dissented from this new act, and did all in his power to prevent its consummation. For that reason we think this law inapplicable to the case; although the position was ingeniously assumed and maintained with great plausibility and power of argument by the learned counsel who represented the plaintiffs in error,yet our impression is that his reasoning on the question is rather plausible than sound. There is a perfect wealth of cases’ cited in the notes of Mr. Broom in his “ commentaries,” on this maxim of Lord Bacon, to which we refer those in search of information upon this interesting subject.
Being of opinion that there was no error in the refusal of this new trial, we direct that the judgment below be affirmed.