Hogue v. Bierne

Maxwell, J. This was an action of covenant in the circuit court of Greenbrier county, brought by Andrew W. B. Hogue and William P. Hogue, against Patrick Beirne, on the following paper: “In consideration of the confidence I have in, and the regard I have for, my nephews, Andrew W. B. Hogue and William P. Hogue, I hereby give them one-fourth part of my personal estate, consisting of debts and money, due me' in my several mercantile concerns, as well as some private debts; requiring however of them, the said Andrew W. B, Hogue and William P. Hogue, their attention and assistance with me in settling up, securing and collecting the debts, claims, &c., due and coming to me as aforesaid, &c. It is furthermore understood and agreed that, in the event of the death of Andrew W. B. Hogue, or William P. Hogue, then the survivor and myself are to have the sole management of his share, together with his own private estate, inherited from his father and mother, for the benefit of his heirs. In witness whereof, the parties mentioned above, bind themselves, their heirs, &c., for the due performance of the above [670] arrangement, and have hereunto set their hand and seals this 7th day of January, 1848. “P. BeirNe, [Seal.] “AND. W. B. Hogue, [Seal.] “Wm. P. Hogue,” [Seal.] There was a demurrer to the declaration, and the question argued and preseuted for consideration is not, is the declaration good, but it is, can an action at law be maintained upon the paper? It will be seen on inspection of the paper that it is a very peculiar one. The cause was argued here with unusual earnestness, and with great ability. No case, either ancient or modern, has been cited involving the construction of any paper anything like this one, and since the argument, I have searched most diligently for one, but have failed to find it. It was stated in argument, however, by the counsel for the plaintiffs in error, and admitted to be true by the counsel for the defendant in error, that the same plaintiffs heretofore filed their bill in equity against the same defendant to enforce specific execution of this supposed contract; that the bill was dismissed in the circuit court, but without prejudice to any suit at law which might be brought; that the case was taken to the court of appeals at Lewisburg, where the judgment of the court below was affirmed. I have not been able to find the manuscript record in the cause, but there is an order in one of the order books here, which shows that a decree in a suit between these parties, in favor of the defendant, was affirmed by the court of appeals of Virginia, all the judges being present. It was stated during the argument of this case by the counsel for the plaintiffs in error, that no opinion of the court was given when that appeal was decided, for the reason that no two of the judges had the same reason for affirming the decree. These facts are not mentioned to have any influence on the result of the case now under consideration, but to indicate the difficulty that surrounds this paper. [671] The paper sued upon is a deed. The first clause of it is-intended to be a deed of gift. The second clause is an independent covenant in relation to the property intended to be given by the first clause, but dependant for its vitality on tbe validity of the gift in the first clause. The third clause is also an independant covenant in relation to the property intended to be given by the first clause, and some other property, but as it was not intended to take effect until after the death of one of the parties, it is not involved in this suit. The controversy in this case turns entirely on the construction to be given to the first clause in the deed. The language of the first clause is: “In consideration of the confidence I have in, and the regard I have for, my nephews, Andrew "W. B. Hogue and William P. Hogue, I hereby give them one-fourth part of my personal estate, consisting of debts and money, due me in my several mercantile concerns, as well as some private debts.” It is essential to a gift, that it goes into effect at once and completely. If it regards the future, it is but a promise; and being a promise without consideration, it cannot be enforced and has no legal validity. 1 Parsons on Contracts, p. 234. Delivery, actual or constructive, is essential to the validity of every gift, Ib., p. 234-5. A gift by deed is good between the parties if it goes into effect at once, without delivery, for the delivery of the deed answers the place of the delivery of the property, when the property is capable of actual delivery. 2 Rob. Prac., (new) 490; Ewing v. Ewing, 2 Leigh, 337; Irons v. Smallpiece, 2 Barn. & Ald., 552; Brown v. Markham, 7 Taunton, 224; 2 Eng. Com. L. Reports, 81; 2 Kent, 437; Hansom, &c., v. State, use Roby, 9 Gill, (Ind.,) 440; Butler v. Scofield, 4 Marshall, 139; Dale v. Lincoln, 31 Maine, 422. The property mentioned in the deed is one-fourth part of certain personal estate, consisting of debts and money due the donor in several mercantile concerns, as well as some private debts. In other words, the property given, or attempted to be given, was one undivided fourth-part of cer [672] tain choses in action. The most that the donees can be held to get under the deed, is an equitable title to one-undivided fourth-part of the personal property mentioned in the deed, and it is,'therefore, not within the jurisdiction of a court of law to give any remedy in the premises. It is maintained, however, that the first clause of the deed is to be construed in connection with the second clause, and that the gift is to take effect when the money is collected on the various debts respectively. If this construction be the correct one, then it ceases to be a gift, and becomes an ex-ecutory contract, which would be void for want of consideration as well as want of mutuality. But the question will probably be asked, if the plaintiffs acquired an equitable title by the deed of gift to the property therein named, why was'it that they were turned out of the court of appeals of Virginia without relief? The answer is, that a court of equity will not enforce a gift against a donor, nor will it enforce any other voluntary contract. 1 Parsons on Cont., p. 234-5; 1 Story’s Eq. Jur., § 433; Antrobus v. Smith, 12 Vesey, 39. As no action at law can be maintained on the paper in question, the judgment of the court below, sustaining the demurrer- to the declaration, was right, and should be affirmed with damages and costs. Berkshire, President, and Moore, J., concurred. Judgment Affirmed,