Robertson v. Wilcox

Park, J. The articles in question belonged to the defendant’s wife, and she, with her husband’s consent, delivered them to the plaintiff as collateral security for an engagement entered into by him for their benefit; and the question is, had the plaintiff the right to retain the possession of the property, as against the defendant, when the articles were forcibly removed out of his possession. The twenty-first section of the act with regard to the domestic relations, (Gen. Statutes, page 304,) provides that no sale or transfer by a husband, of the personal property of Iris wife, or of his interest therein, shall be valid, unless the wife, if living, shall join with her husband in a written conveyance of the same. No writing was given by the defendant and his wife, setting forth the contract on which the property was delivered, and the question is, was one necessary to give validity to the transaction. It is manifest that no sale was made of the articles to the plaintiff, or of the defendant’s interest therein; and we are therefore to inquire whether a transfer of the same was made within the meaning of the statute. A transfer is defined to be, “ the act by which the owner of a thing delivers it to another person, with the intent' of passing the rights he had in it to the latter.” Bouvier’s Law Diet. It is not pretended that the property, or the defendant’s interest therein, was directly transferred to the plaintiff, but [430] the claim is, that inasmuch as the property was pledged to the plaintiff, and inasmuch as a pledgee has the right under certain restrictions to sell the property pledged, if it is not redeemed according to the terms of the contract, therefore the act of the defendant and his wife in pledging the property might result in a permanent transfer of it. This claim is based on the ground that the statute should receive a liberal construction for the protection of wives, and that such a construction requires that any disposition of the personal property of the wife, by the husband and wife, which is liable to result in depriving her of her property, or of the husband’s interest therein, should be held to be a transfer, within the meaning of the statute, and consequently invalid unless made in writing. We deem it unnecessary to determine whether this property, or the husband’s interest therein, could be sold by the plaintiff under any circumstances, owing to its peculiar condition ; for we are satisfied that the act of the defendant and his wife in placing the property in the hands of the plaintiff gave him a right to hold the possession of the property, whether he had all the ordinary rights of a pledgee or not. The right of a pledgee to sell the property pledged on giving reasonable and proper notice to the pledger of the time and place of sale, depends upon circumstances. Sometimes the pledger has only a limited title to the property pledged. He may have only an interest for life, or for a term of years, or he may have simply a lien, or a right by a former pledge; still he may pledge the property to the extent of his interest. But the pledgee in all such cases has no right to sell the property on the non-fulfillment of the contract, although he may pursue the proper course for the purpose, for the pledger has no such right to confer. The pledgee must content himself in such cases with holding the possession of the property till his debt is paid, or the interest of his pledger in the property has expired. Story on Bailments, sec. 295 ; Hoare v. Parker, 2 T. R., 376 ; Hooper v. Ramsbottom, 4 Camp., 121; McCombie v. Davies, 7 East, 5. A pledge of property does not carry with it the title to the [431] thing pledged. The title remains as before.- All that passes to the pledgee is the right of possession, coupled with a. special interest in the property, in order to protect the right. 2 Kent Com., 585 ; Story on Bailments, sec. 287 ; 2 Story Eq. Jur., sec. 1030 ; 1 Swift Dig., 390. We think therefore that the delivery of the property to the plaintiff, with the right to retain the possession of it as against the defendant till the plaintiff should be saved harmless from his engagement, cannot be regarded as a transfer of the property, or of the defendant’s interest therein, within the meaning of the statute. Should the plaintiff at any time attempt to sell the property, or the defendant’s interest therein, by virtue of the pledge, then the defendant and his wife can make the claim now pressed upon our consideration, that such act, coupled with the pledge, would amount to a transfer of the property, or of the husband’s interest therein, within the meaning of the statute. This would be a forcible argument to show that the plaintiff derived no power from the pledge to sell the property or the defendant’s interest therein. But till such time shall arrive this claim is premature and speculative. Even in cases where the pledgee has the right to sell in case of forfeiture, until such right is exercised no transfer of the property from the pledger is effected. The pledge in such cases merely empowers the pledgee to sell in a certain event, on giving proper notice to the pledger of the time and place of sale, and apply the proceeds to the payment of his claim. But giving the power to sell, although irrevocable, does not transfer the property. It surely is not transferred to the pledgee, for the authorities all agree that the title remains with the pledger. To whom then is it transferred ? It is clear that no transfer is made from the pledger till the pledgee exercises the right to sell. A new trial is not advised. In this opinion the other judges concurred.