Lewis v. Buttrick

Ames, J. The only title under -which the plaintiffs claim the property in dispute is a mortgage from Stella A. Fuller, wife of Charles C. Fuller, in which she avouches herself “ to be the lawful owner ” of the goods and furniture mortgaged, and professes to have good right to sell and dispose of them accordingly. The case however finds that the articles in dispute, at the time of the mortgage, were the property of the husband and have never belonged to the wife. Having no title in herself, she could convey none to the plaintiffs. This defect in their ease is not remedied by the alleged ratification. That ratification, with the declaration that she was and had been his “ agent for the transaction of business,” supplied whatever of authority was necessary to give validity to her execution of the instrument; but it did not change the character of the instrument upon which it was indorsed, so as to give it an effect which its own terms did not import. The instrument did not purport to convey his property at all. The mortgage under which the plaintiffs claim had therefore no validity or effect whatever; not as her mortgage, for want of title; not as his mortgage, for want of efficient words in the instrument itself to make it operate as such. “ A plaintiff in replevin, like plaintiffs in other actions, must maintain his case on the strength of his own title or claim. It is im 414 material whether the defendant has or has not any title, if the plaintiff fails to show any in himself.” Johnson v. Neale, 6 Allen, 227. As these plaintiffs stand in exactly that predicament, the entry must be Exceptions overruled.