Welles v. Cowles

Hosmer, Ch. J. Julia Norton was the proprietor of a share of turnpike stock, a dividend on which was declared, by the directors of the turnpike company, a few days after her death, to a period which was nine days before that event. The plaintiff, Welles, through his wife, who is heir to the deceased, claims the above product of the turnpike stock; and the defendant interposes his demand, on the ground of his being her executor. The former considers the profits of the stock, to have been real estate; while the latter insists, it is personal. That the shares of a turnpike company, before the act of the General Assembly, passed at their May session, 1818, were real estate, was decided, in the case of Welles v. Cowles, 2 Conn. Rep. 567.; but the money received for toll, is personal property. Tolls, when considered as synonymous with shares of a turnpike company, and indicating a right to collect money, are a tenement; (Co. Litt. 19. b. 20. The King v. The Inhabitants of Bubwith, 1 Maule & Selw. 514.) but when the toll is collected in money, the money is personal estate. It is [188] a moveable, annexed to, and attendant on, the person of the owner. The nature of property is not changed, by the manner in which the title to it is established; and corn is not the less a personal chattel, because it is derived out of real estate. The profits of the shares were not, as has been erroneously supposed, real estate, until separated from the realty, by the order of dividend. They ever were personal; and the dividend did not create the right to them, but merely aparted a common property, by a legal distribution. Welles v. Cowles, 2 Conn. Rep. 573. It would hardly be contended, if Julia Norton had been the sole proprietor of all the turnpike stock, and a thousand dollars had been collected for toll, and was in the possession of the toll-gatherer, at her death, that her heir, in opposition to her executor, could successfully claim the money. But, how does the case, hypothetically stated, differ from the one existing before the court? In nothing, except that in the former, she would have a right to the whole, and in the latter, to a part. This difference in the cases, neither affects the nature of the property, nor the title of the owner; but merely the mode in which that shall be held in severalty, which before was in common. The highway laid across Julia Norton's land, had existence in her life-time, from the moment when the report of the committee was approved, by the court. Stat. 377. tit. 86. c. 1. s. 11. ed. 1808. The order on Farmington, to pay the damages assesed, immediately became a debt, although not payable until a future specified period. It is not distinguishable from any other judgment for debt; or from a bond executed by Farmington, obliging themselves to pay a sum of money to Julia Norton, as a consideration for the right of way. The time at which the highway was to be opened, has no bearing on the point in controversy. This relates to the actual occupancy of the land; but the right to occupy having been established by the court, the correspondent consideration was established at the same time, and was payable without reference to the use of the property. It was not analogous with rent, which successively arrises from actual occupation, but it was the consideration of a sale, through the intervention of the constituted authority. With respect to the rents paid to the defendant, and claimed by him, as the executor of Julia Norton, the plaintiffs, as heir, must shew, that they have title, by an express or an implied contract. The land, from the use of which they arose, [189] the defendant, as the guardian of Miss Norton, leased, by parol agreement; and the contracts were to pay to him, a stipulated sum of money for the enjoyment of the property. The rent was paid for the use of the land to the death of Miss Norton, and no longer; nor was the property occupied, by the tenants, after that event. It is difficult to discern even a plausible ground for the plaintiffs’ claim. If the parol leases were made for a year, as the plaintiffs have insisted; then, by the death of the ward, before the expiration of the term, they were determined; and, of consequence, no rent ever became payable. Granby v. Amherst, 7 Mass. Rep. 1-6. And that they were thus determined, I think is clear from this consideration; the guardian having an authority only, uncoupled with an interest. Admitting, however, that he had legal power to make a valid lease for a year; a deficiency of right in the plaintiffs is equally obvious. The tenants expressly contracted with the defendant, solely and exclusively, to pay him for the use and occupation of the land; and the agreement being expressed, forbids all implication. The plaintiffs have advanced the general proposition, that rent is incident to the reversion; and to establish the position, recurrence has been had to the law established, relative to the payment of rents. From this source they derive no aid; as the decisions referred to all proceed on the ground of express reservation in leases, and are nothing more than the construction given to express engagements. The expression that the rent is incident to the reversion, is found in some of the cases; and, in connexion with the other facts in the case, it merely means, that under the contract, construed according to the intendment of the parties, the reversioner is entitled to the rent. For example;-If the reservation of rent be general, without naming any person, the law presumes it to have been the joint intent, that it should be paid to him who advances the consideration. 6 Com. Dig. 209. 6 Bac. Abr. 20. 2 Cruise’s Dig. 318. § 44. So, if the reservation be to a man and his heirs and assigns, the heir and remainder-man have right to the rent falling due, after their estates commenced; (6 Com. Dig. 209. 2 Cruise’s Dig. 318. § 44.) and if the reservation be to assigns during the term, the assignee is entitled to the rent, on the expressed intention. 6 Com. Dig. 210. 2 Cruise’s Dig. 319. § 48. Clun’s case, 10 Rep. 127. b. Sachaverell v. Froggatt, 2 Saund. 367. S. C. 1 Ventr. 161. But, if the reservation be made to the lessor only, none but the lessor or his executor can reco [190] ver on the contract. 6 Com. Dig. 209. 2 Cruise's Dig. 319. § 45. That is precisely the case before the court, the promise having been made to the defendant only. But, determinations are unnecessary to establish the palpable proposition, that on a promise to A. a suit cannot be maintained by B. To the money demanded, then, the plaintiffs have no foundation of claim on express contract; and their assumed right, on the ground of implied contract, is equally indefensible. No implication is admissible; the express engagement to the defendant precluding it. Expressum facit cessare tacitum. Besides, an action for use and occupation, will only lie, where the defendant holds by permission of, or by demise from, the plaintiff. Gregory v. Badcock, 2 Smith's Rep. 18. Esp. Dig. 20. In addition to this, the plaintiffs had no estate, for the occupancy of which, the money demanded was received by the defendant. It was the estate of Julia Norton, and the rents all accrued in her life-time. The heir has no title to rent accruing in the life-time of his ancestor, unless by virtue of express contract. Co. Litt. 162. a. Ognel's case, 4 Rep. 49. The other Judges were of the same opinion. New trial not to be granted.