Munson v. Munson

24 Conn. 115

Opinion

Stokrs, J.

The title of the plaintiff to the personal property in question in this case, depends on the true construction, and effect, of the deed, by which it is claimed that he conveyed it to the defendants. That deed, especially as to the stipulations and condition contained in it, is very informally and loosely .expressed; but, in our opinion, the meaning of the parties, in regard to the personal property mentioned in it, with' which only we have here any concern, is quite plain, from the language used, and the nature of the transaction with which it is conversant. In accordance with the cardinal rule of construction as to all contracts, that intention should, if possible, be carried into effect, and we think' that there is no difficulty in doing so in this case.

We do not think, with the defendants, that the terms of the deed authorized them to sell or exchange the stock conveyed by it, on their substituting in lieu thereof, on the farm, other stock of equal value. It not only says nothing respecting such a sale, exchange, or substitution, but, on the contrary, stipulates that that stock, as well as the other property conveyed, shall remain liable for the support provided in the deed for the plaintiff’s wife.

Nor do we accede to the claim of the plaintiff, that by this deed no present legal title to the personal property in question was conveyed to the defendants, and that whether a title should vest in them depended on their performance of its condition. In reference to that property, the terms used by the grantor are, “ I do hereby assign, transfer and deliver to [the defendants] all my stock,” &c. These are the most apt, and indeed the technical terms, for the conveyance of personal property, and the deed contains no language which imports that the interest in it, which was conveyed, was not to vest immediately. The form of expression in the condi tion was, in our opinion, intended, not to postpone the vesting of an estate in the property, but only to make the conveyance defeasible on its non-performance. This is evident from the whole scope of the instrument.

But although the deed passed a present interest in these’ chattels to the defendants, it was not, necessarily, an unqualified one; a general property in them might have been vested by it in the defendants, and aJ special interest retained by the plaintiff. Now it is very clear that, while the plaintiff intended to convey this property to the defendants, he also intended that it should not be disposed of by the latter, but that it should be holden by them as a security for the performance of that part of the condition requiring them to furnish to their mother the support therein mentioned, during her life ; for there is a provision in the deed that they “ are not to reduce, or impair the value of, the ■ stock, which he had thereby assigned and conveyed to them,” and that the said “property and chattels shall be liable” for said support. This amounts to a reservation, by the plaintiff, of a lien on the stock for the security of that object. The defendants were indeed left in the-possession of the property, and therefore the sale of it to a person not cognizant of this lien, might vest an absolute title to it in their vendee; but the question here as to its title, is between the parties to the deed, and not between the plaintiff and such vendee. We see no objection to the validity of the reservation of a lien as between the parties to the instrument, and consider the case as though the defendants had mortgaged the stock to the plaintiff for the security of the provision-for the mother’s support, with an agreement that the defendants might retain possession of it, until that provision was violated. In this view we think that the principle settled in Ashmead v. Kellogg, 23 Conn. R., 70, is applicable to the case, and that as the sale of the stock, without the permission of the plaintiff, was a misappropriation of it to a purpose different from that for which the defendants were allowed to retain and use it, it constituted a wrongful conversion of it by them, which operated as a forfeiture of their right of possession, and vested it in the' plaintiff. He was therefore entitled to a verdict. It Will be perceived, that the ground on which we put his right to recover, is, not that the condition of the deed was broken, for it did not appear that there had been any such breach, but that he had been wrongfully deprived of the interest which he had in the property, here in question, by virtue of an independent stipulation in the deed. This view does not appear to be applicable to the land, for which it has been suggested that an action of ejectment is pending in favor of the plaintiff.

"We do not think that the testimony offered by the defendants, for the purpose of aiding in its construction, was admissible. Its language is intelligible, taken in its ordinary sense, and that evidence did not conduce to prove that it was used in any sense which was peculiar or different from its natural meaning, and the only effect of it would be to show the improvidence of the arrangement which the parties had chosen to make. Considering the character of the stock conveyed, its liability to deterioration, and that it would inevitably in time become useless, and even a burden, if it was not disposed of, that arrangement would certainly appear to be, ordinarily, a very singular one; but it was manifestly designed by the plaintiff as an amicable and final arrangement of his property for the benefit of himself and his family, by which the property itself shouldbe held chargeable for the performance of the provisions made for them, and it is not improbable that, with regard to the stock and other personal property, the defendants, his sons, were willing to rely on obtaining the consent of their father to a sale or exchange of any part of it which might become necessary, and which it would be as much for his interest as theirs to give. But it is sufficient for us, that they chose to make the arrangement disclosed in the deed.

. As to the question of damages, we think that they ought not to have been reduced by the payments, made by the defendants, to the daughters and creditors, of the plaintiff. The property, disposed of by the defendants, as well as the rest of the property conveyed by the deed, was, not only by the terms of the condition, but also by a distinct stipulation, made liable, on the non-performance of the requirement contained in it, for the support of their mother during her life; and although the condition had been performed up to the time of the trial, yet as the mother was still living, and the remaining property might be inadequate security for her future support, the security furnished by the property, disposed of by the defendants, would be lost to the plaintiff, unless its value should be recovered by him, to be held for the purpose for which it was so charged. It would be contrary to the intention of the parties, and palpably unjust, to throw the hazard of the security for that support on the remaining property. The plaintiff should, by the verdict, be placed in as good a situation with respect to his security for the future performance of the stipulations of the deed, as if the property had been retained by the defendants, and this could be done only by allowing him to recover its value. If, by the terms of the deed, the property converted by the defendants was made chargeable only for the payments which have been made by them, or if no part of the conditions or stipulations remained to be hereafter performed, a different question would be presented. We think that there is an obvious difference between the present case and those relied, on by the defendants, where it was held that the damages in trover should be reduced below the value of the property converted, in consequence of its having been returned to and received by the plaintiff, or of his having received the benefit of it, by its being specifically appropriated, under legal process, by his creditor, for the payment of his debt.

The declaration, in this case, containing several counts in trover, the plaintiff was not confined, on the trial, to proof of only one cause of action. The familiar rule,-that in such cases the plaintiff may prove as many causes of action as there are counts, is applicable here, although it is stated in the commencement of the seventh count, which is the first count in trespass, that the preceding and following counts are for the same cause of action. That averment was plainly introduced, for the purpose of justifying the joinder of counts in trover and trespass under our statute, which allows counts in trespass and case for the same cause of action, to be united in the same declaration; it is not to be regarded as any part of the statement or description of the causes of action set forth in the declaration, and its effect should be limited to the purpose for which it was introduced.

The motion in arrest of judgment for a misjoinder of causes of action, is groundless, as that objection, which would be clearly fatal by the rules of the common law, is obviated by the statute which has been mentioned.

A new trial is not advised.

In this opinion, Hinman, J., concurred.

Waite, C. J.

The court in this case instructed the jury, that if they should find, that, the defendants have sold any part of the stock, specified in the deed, without the permission of the plaintiff, such sale was a tortious conversion, for which the plaintiff was entitled to their verdict, for the value thereof, with interest from the time of the conversion.

To the correctness of that instruction, founded, as it was, upon the case stated in the motion, I can not yield my assent.

The deed of the plaintiff conveyed to his two sons the real and personal property therein described in fee, subject to a condition, that, if they furnished their mother a suitable support during her life, paid a certain sum to his daughter, and paid all his debts, the conveyance was to be “ perfectly good and valid, otherwise void.”

There was no claim made on the trial, that the defendants had not performed all these conditions, supported their mother, and paid their sister, and the debts of the plaintiff. So long as they performed those conditions, the deed, by its very terms, was perfectly good and valid, and vested in them the property in fee.

The case, at least so far as the real estate is concerned, and in this respect there is no difference between that and the personal property, is precisely like that of Ghalker v. Chalker, 1 Conn, ft., 79. There the plaintiff had conveyed to his brother’s widow and her children, certain lands, upon condition that they paid him a certain annuity, but in default of such payment the deed was to be void. The court said the grantees were well seized and possessed of the lands, under the deed, and had a complete title in fee, vested in them, subject only to be devested, in consequence of the nonpayment of the annuity ; and that the grantor could not sustain an action at law, to recover possession of the lands, without showing that the grantees had failed to perform the condition of the deed.

The same rule applies to the case under consideration. No action at law can be sustained by the plaintiff, to recover for any of the property conveyed by his deed, without showing a failure, on the part of his sons, to perform the condition. And so, in my opinion, the jury should have been told.

But stress is laid upon the clause, “ it being understood that my sons are not to reduce or impair the value of the stock I have hereby assigned and conveyed to them,” as relieving the case from the operation of the general rule. In the first place, it is to be observed that this clause is not in the condition of the deed, nor is it provided in the deed, that it shall be void, if the value of the stock should be impaired. «■

But what did the parties mean by that understanding ? That the sons should keep the horses, the oxen, the cows, the sheep and the swine until they all died of old age ? Such a construction would render the conveyance almost valueless to the sons, and of no use to the plaintiff. The swine, for instance, would be nearly worthless, if they could not be fattened and killed. And some of the other stock might not be worth much more.

As it was, more than six years intervened between the conveyance and the commencement of the plaintiff’s suit. Had the stock all been kept during that period, how much would it have been worth to the plaintiff, even if he had shown a breach of the condition of the deed ?

The true construction, in my opinion, was as claimed by the defendants’ counsel. They had a right to sell and exchange the stock, and substitute therefor other, of equal or greater value. And so I think, the parties understood the agreement at the time. Any other construction, as it seems to me, would be unreasonable and absurd.

Again, the jury were told that the defendants could not sell the stock, without the permission of the plaintiff. But he had no inducement to give such permission, and men are not supposed to act without motives.

He had parted with all his interest in the property, except a lien to recover the performance of the condition. He stands much in the situation of a mortgagee, who can sustain no action at law, for any waste committed upon the property mortgaged, although he might have an injunction against the commission of such waste as would render the pledge inadequate security.

So in the present case, as long as there has been no forfeiture, the plaintiff can sustain no action at law. Were the sons to commit waste, so as to endanger the security, he might sustain a suit in chancery, to prevent the commission of such waste.

But even if there has been a forfeiture, and compensation can be made, a court of equity has power to relieve against it, when making such compensation.

Again, the plaintiff did not show that he had sustained any damage, by reason of the sale of the stock, and yet the jury were told that he was entitled to recover the value of the stock sold. This, as it seems to 'me, is not in accordance with the rule that, in an action at law, a plaintiff shall recover no more damages than he has actually sustained.

Thus a surety, who brings an action upon a bond of indemnity, can recover no greater damages than he has sustained, however great may be his liabilities.

For these reasons, I am of opinion that a new trial ought to be granted.

A new trial not to be granted.