104 Ky. 171 | Ky. Ct. App. | 1898
delivered the opinion oe the. court.
This appeal involves the question as to whether or not certain papers called “'warehouse receipts,” which J. C. Hawkins & Co., owners of an elevator at Burg-in, Ky., issued to appellant, evidence or constitute a sale in pledge of certain wheat which belonged to them, and which was in their elevator. Two of the receipts purport to hypothecate 8.000 bushels of No. 2 wheat, each, and each hypothecation is for the payment of $5,000. The other purports to pledge 10.000 bushels to secure the payment of $6,000. Hawkins & Co. also issued warehouse receipts to various banks purporting to pledge or hypothecate wheat in their elevator to secure the payment of stipulated sums. The wheat described in all of the receijAts was No. 2 in quality, and all in’ the elevator was of that quality. None of the lots pledged Avere separated and set apart at the time the warehouse receipts were issued, nor was it subsequently done. The wheat was in a common mass. When HaAvkins & Co. made an assignment, it was ascertained that there was not as much wheat in the elevator by many thousand bushels as Avas covered by the various Avarehouse receipts. From the A'iew we have of this case, it is useless for us to go into detail as to the dates of the various Avarehouse receipts, and the amount of wheat actually in the elevator at the time of their issue. J. C. Hawkins & Co. did not have a public grain elevator or Avarehouse. They did not comply, or attempt to comply, with the act of April 28, 1880, entitled “An act to regulate public grain warehouses in this Commonwealth.” They had never procured a license to trans-ad business under the provisions of that act; neither did i hey'receive grain for storage. The grain in the elevator Avhich they attempted to pledge to secure the various sums-
Counsel for appellant claims that the proceeds of the wheat should be applied to the payment of its debts. The wheat described in the receipts was not designated by marking and segregation. It remained in the common mass, and for that reason the assignee claims the banks acquired no interest in or lien upon it by virtue of the warehouse receipts. On the other hand, it is claimed that, as the wheat pledged was part of a common mass, all the specific particles of the mass being of the same kind and quality, and it having been the intention of the parties to pledge to the payment of the debts the quantities described in the receipts, it was not necessary to segregate and mark the quantities in order to give the banks an interest in or lien thereon.
Counsel for appellant has evidently' expended much labor in his research to ascertain the rule of the common law with reference to the sale, or sale in pledge, of property, and ably argues that this court accept as correct his claim that at common law and under the act of 1869 it was not necessary, to render- valid a sale in pledge, that the various quantities of wheat described in the receipts should have been segregated and designated by mark. The question involved in this case was fully considered and elaborately discussed in the case of Ferguson v. Northern
Counsel contends the absolute sale of part of ihe common mass passes the title and possession to the receipt holder as tenant in common with the holders of the balance of the mass, or in severalty when it is the intention of the parties to so pass title and possession. As we have indicated before, the Ferguson case is to the effect that the receipt did not amount to a sale or pledge of the wheat. In that case ilie court discussed the question of the interest of tenants in common in property in a common mass, and said: “If a part of the hams had been wrongfully taken by a mere tres
It is contended that Hawkins & Co.’s assignee stands in the same attitude as their assignor, and, as the rights which the warehouse • receipts gave the banks could have been enforced as against Hawkins & Co., if not at law’ in equity, therefore they are enforceable against the assigned estate. This identical question wms adjudged in the Ferguson case. The court said: “It is. insisted, however, by counsel, that a court of equity will relieve because a court of law, by reason of the insolvency of the vendor, can not give adequate relief. If no title or interest passed to the vendee, there can be no equitable lien; and to enforce the specific performance of a contract in t'he case of a chattel, if a court of equity wdll take the jurisdiction, there is as much necessity for identifying the property as in an action at law. * * * The question in this case is, were the