78 Md. 529 | Md. | 1894
delivered the opinion of the Court.
Callahan brought an action of replevin against Hopper for the recovery of certain goods and chattels.
There was no controversy about the title of the plaintiff to a number of sheep and lambs which were included in the property replevied. The evidence in his behalf tended to prove that the other goods and chattels replevied were on a farm in Harford County; that they belonged to his mother, and were sold by her to him, and that the possession was delivered to him by her and her husband. The evidence for the defendant tended to prove that in the year eighteen hundred and eighty-four, several years before the alleged sale to the plaintiff, he bought the farm, and the personal property on it (being the goods and chattels now in controversy) from Timothy Callahan and Margaret his wife, (the father and mother of plaintiff,) and that they delivered to him the possession of the real and personal property; and that after this purchase, Timothy Callahan attended to the business of the farm for him; and that in the year eighteen hundred and eighty-nine, the defendant rented the farm and everything on it to the plaintiff. The defendant admitted that the deed for the farm was intended, to a great extent, as a security for money due him by Timothy Callahan. There was also evidence on behalf of the plaintiff tending to prove that from eighteen hundred and eighty-four to eighteen hundred and eighty-nine, the defendant never exercised any control over the
It will be observed that this prayer does not require the jury to negative the defendant’s title, although evidence had been given in support of it. On the contrary, it proceeds on the theory that even if he had a good title to the personal property, the plaintiff could acquire a good possessory title by purchase for a valuable consideration from Margaret Callahan, if she was in possession and control of it by defendant’s concurrence. According to the general rule of law in regard to sales of chattels “no one can transfer to another a better title than he
As the case must be remanded for a new trial, it is proper to decide all the exceptions. The first and second exceptions were taken to the refusal of the Court to-admit in evidence a paper-writing called in the record a. “bill of sale.” It purported to have been executed by Mrs. Callahan without the joinder of her husband, and to have been acknowledged before a justice of the peace of the City of Baltimore; but it had not been recorded. Supposing the chattels embraced in this instrument belonged to Mrs. Callahan, she and her husband might have conveyed them by their joint deed, as provided in Article 45, section 2, of the Code; but her own separate deed is not within the statute. It was not the purpose of this section to prevent husband and wife from disposing of her chattels by a sale in the ordinary way without deed or writing (Whitridge vs. Barry, 42 Md., 151); but in cases where a deed is made, as it authorizes only a joint deed, the wife’s separate deed stands as it did before the statute was made; that is to say, it is void. There was a subscribing witness to the instrument who was dead at the time of the trial, and his hand-writing was proved; this proof would have been sufficient to entitle the writing to be read in evidence, if the contract, had been such as the married woman was competent to make. She and her husband could jointly sell her chattels without writing; and if they had, both acting together, sold them at the time this paper-writing was executed, the sale would, of course, have been valid; but the paper-writing would neither have added to, nor detracted from, the efficacy of the sale. In the third exception, the defendant offered to prove that after the sale
.For the errors in respect to the prayers, the judgment must be reversed, and a new trial awarded.
Reversed, and new trial.