Clements v. . Yturria

Folger, Ch. J. This is an action in trover, for the conversion by the defendant, of certain cotton of the plaintiff. To recover in trover, there must have been possession of the property by the plaintiff, or there must be an existing right to take immediate actual possession of it. It is clear that if the plaintiff never has had possession of the property, he has no right to have or demand possession. The right asserted, in one view of it, rests upon a contract made by him with the Confederate power; while that power was belligerent with the United States; while the plaintiff was a citizen of the latter; by which contract the cotton was the consideration for goods, contraband of war, furnished by him to the Confederate power. It was a contract grossly against public policy and void. Judicial aid will not be given to enforce such a contract, nor to maintain a claim that rests solely upon it. The proof of the contract, and that the cotton sued for was the subject-matter thereof, does not make out a right to. take immediate possession -of the property; for the contract is void, and of itself gives no right that the law will recognize. But it is claimed by the plaintiff that though the contract was illegal and void, yet it was executed ; and that lie thereby had the right to the property and to take immediate possession of it. There is a series of cases in the United States Supreme Court, that seem to hold that where a claim to right springs from such a contract as that in hand, it matters not that the property, which is the subject-matter of the contract, has come into the actual possession of the plaintiff, and has been taken therefrom by the party against vdiom the claim is made. “ Whether executed or executory,” it is said in Montgomery v. The United States (15 Wall. 395), “it (the contract) was illegal and void.” (See, also, Sprott v. United States, 20 Wall. 459, recognized in, Whitfield v. United States, 2 Otto [92 U. S.] 165; Desmare v. United States, 3 id. [93 id.] 605.) *291 Whether those cases go upon the particular requirements of the act of Congress cited in them in relation to abandoned and captured property, or whether that the United States was a party, was supposed to affect the rule to be declared, we will not inquire. As the question presented in this case is not a Federal question, we are not bound to follow those decisions, when by doing so we will depart from wrhat is recognized as law in our own State. In Robinson v. Int. Nat. Life Ass. Soc. (42 N. Y. 54, 66), it is indicated that rights may arise from a contract void in itself as against public policy, where the contract has been carried out by the parties to it. In Woodworth v. Bennett (43 N. Y. 273), it is recognized, that if an illegal and void contract be so fully executed, as that a demand connected with it is capable of being enforced at law without aid from the illegal transaction, the claim will be sustained. (Citing Chitty on Cont. 657; Tenant v. Elliott, 1 Bos. & Pull. 3; Merritt v. Millard, 4 Keyes, 208.) The question, then, with us, is this: Did the plaintiff ever have such a right or interest in the property as that without proof of the contract he could have shown himself entitled to have immediate possession of it ? .It is claimed that the cotton was set apart for him and his mark put upon it at San Antonio. But he never had actual possession of it there. It was, while there and after it left there, still in the actual care, custody and control of the Confederate power by their carrying agent Oopewood. It had never, in fact, been out of that custody since it first came into it. That plaintiff’s mark was put upon it signified nothing, without the contract was shown to give meaning to the act of sampling by him and marking with his insignia. Could the plaintiff have taken by judicial process the cottou out of Copewood’s hands, merely by proof that marks used by him to make known cotton owned by him were upon those bales ? Mo ; he would have needed to have proved the contract by which he had a right to place those marks thereon. Suppose the plaintiff had not paid the price for the cotton; would the acts of the parties, or their words, have divested the Confederate power of the right to hold until the price was paid; in other words, of the lien for *292 the purchase-money % (Baldey v. Parker, 2 B. & C. 37; Smith v. Surman, 9 id. 561.) And suppose that he had paid the price, and it was denied "by his vendors; could he have recovered the property on proof of the facts now relied irpon to show possession, and without proof of his contract ? All the cases cited by the appellant to show a right of property on a sale without actual delivery, are based upon the contract to sell and deliver; and it is by virtue of the contract that, though not yet delivered in fact, it was held in them that the title had passed, and that the property was that of the vendee. There is no proof in" the case, when all the testimony is read together, that the plaintiff ever had a possession of the cotton, other than a constructive one. A constructive possession is one that depends upon the contract that confers title. It is true that the plaintiff uses words that, taken alone, indicate a possession in fact; such as that his agent received this property and shipped it. But it is plain from other parts of the case that it was never in the actual, exclusive possession and control of that agent. So plaintiff says that he said to the Confederate agents that he accepted the cotton; but it was not put out of their possession and into his. His acceptance was oral only. The cotton was-spoken of as his, in varying forms of speech. It was but speech. It is plain that this meant no more than that it was cotton got together to fill the contract made with him. He says that it was delivered to him. But he never changed the location of, or personal care over it. The bill of lading was handed over to him. This was but a symbolic deliver)’. In short, there was never any thing made to the plaintiff, more than a constructive delivery; he never had any thing more than a constructive possession. The defendant got the cotton from Lopez & Garcia; those men got it from Confederate military officers; those .officers got power over it because it was in the hands of Confederate agents; those agents had taken it as it was gathered together for them in the interior of Texas. It had never, since bought or taken by the Confederate power, been out of the actual physical control of the agents of that power. How a constructive possession is one made up of acts short of possession *293 in fact, that by relation to the real legal title amount in law to a possession in fact. But they are nothing without they relate to and rest upon the legal title. And until the legal title is proven, they, though proven, show no right to take immediate actual possession. In this case, no legal title could be proven, but by the contract with the Confederate power. That is shown »to be void as soon as it is shown at all. Hence the plaintiff had no more a possession that will sustain this action than he had a title that will. This leads to an affirmance of the judgment, and shuts out the need of considering the other questions made at the argument. All concur. Judgment affirmed.