Biemuller v. Schneider

Ritchie, J., delivered the opinion of the Court. The appellant, as plaintiff below, brought his action of replevin to recover possession of certain horses, cows and other personal property alleged to have been wrongfully taken and detained by the appellee. Four pleas were [557] filed: first, non cepit; second, that the goods and chattels belonged to the defendant; third, that they were of the personal property of Frederick Schneider, deceased, and belonged to his legal representatives; and, fourth, that the said goods and chattels were not the property of the plaintiff. The plaintiff’s offers of evidence were primarily directed to showing, under the third and four issues, which raised the substantial contention in the case, that during his life-time Frederick Schneider had executed a bill of sale to one Samuel Fernheimer of certain goods and chattels pertaining to his dairy business; that Fernheimer had taken them into possession, and plaintiff at the earnest solicitation of Schneider, whose wife, the defendant, was a relative, bought them of Fernheimer, giving his promissory note with security therefor, and then delivered them to Schneider to use in his dairy business, with the express understanding that whenever the plaintiff desired to do so he could resume possession of them, Schneider in the meantime to have authority, by sale or exchange, for dry cows and other unprofitable stock, to substitute better ones, the substituted articles to he the plaintiff’s as if the original had been kept; that Fernheimer had recovered the purchase money due on plaintiff’s note by suit; that Schneider had made exchanges of some of the stock, recognizing plaintiff’s ownership when doing so, and plaintiff had paid the difference in trades where the old stock was valued at less than the new; and that the goods and chattels specified in the writ of replevin were made up of articles mentioned in the hill of sale to Fernheimer and purchased of him by plaintiff, and those substituted by Schneider in accordance with plaintiff’s permission, and others so substituted by defendant under an extension of the same authority to her; and that these were the goods and chattels taken and withheld by defendant and the subject of the suit. [558] It was conceded at the trial that Frederick Schneider was dead, and that when the suit was brought letters of -administration had not been taken out on his estate, but had since been issued to John T. Ensor. The principal ground relied on by the defendant for the exclusion of the recited offers of testimony was that the goods and chattels being in the use and possession of -Schneider at the time of his death, they, or any claim concerning the same, could only be recovered by suit against ■Schneider’s administrator. This proposition presents the ■essential controversy in the case. While, as was declared in Rockwell vs. Young, 60 Md., 566, title to the personal estate of a decedent can be transmitted only through the instrumentality of letters of administration, except in certain exceptional cases by an executor de son tort, that principle of law has no application where the title or right of possession to the goods was not in the decedent. The mere death of a party cannot operate to transmit what he did not have. It is only the •assets of his decedent for which an administrator is responsible, and over which he is entitled to exercise control. Dorsey vs. Smithson, 6 H. & J., 61. The only inquiry to be made therefore is, whether assuming the plaintiff’s •offers of evidence disclose the true state of the facts, there was any right in Schneider to withhold the goods in question in his life-time from the plaintiff. It is obvious, in •our view, that he had not. As to the further contention ■of defendant, that a bill of sale was required from Fernheimer to transfer the title to the goods from him to plaintiff, because he had not assigned or released the bill of sale from Schneider to him, we find no warrant for it in the statute indicating where such an instrument is necessary. It is ■only where the vendor, mortgagor or donor, shall remain in possession of the property that a bill of sale or mort•gage is required to be executed and recorded; but even this .is not requisite to a transfer of the property as between [559] the parties thereto. Section 39, of Article 24, of the Code. The bill of sale from Schneider to Eernheimer gave him •an absolute right of disposition of the property. Its office was for the protection of the public so long as Schneider remained in possession of the goods by permission of Eernheimer. When therefore Eernheimer took them into his •own possession, no more formality was necessary on his part when selling and delivering them to another, than if when Schneider sold them to him he had made a transfer •of their possession, instead of retaining them in his possession, and for that reason executing the bill of sale. We see no force, from the nature of the issues, in the • objection, that neither Schneider nor Eernheimer being a party to the cause, proof of plaintiff’s transactions would be introducing res inter alios acta. The title of plaintiff had been put in issue, as well as title claimed to be in Schneider and defendant; and we think the offer of proof of his title and of the nature of the possession of the goods he conferred upon Schneider, and of how he was ■entitled to the articles substituted by Schneider for those •originally lent him was pertinent and admissible. The relation of Schneider to plaintiff, assuming the truth of the evidence sought to be offered, was simply that of a borrower or bailee of the goods originally put in his possession, with authority from plaintiff as his agent to replace worn out or unprofitable animals with better ones, and thereby enable Schneider to successfully carry on his business, which was plaintiff’s motive in allowing him to use the stock, and at the same time preserve it from deterioration on the plaintiff’s account. Erom the views expressed it is unnecessary to discuss seriatim the plaintiff’s bills of exception upon the testimony, and the prayer he submitted. We consider the rulings in respect to them erroneous. As to defendant’s •prayers, it correspondingly follows, that, with the exception of the third, they should not have been granted. As [560] to the third, we think there was no error, considering the evidence offered by the defendant to show fraud in the procurement of the bill of sale executed by her, in giving the instruction therein contained. (Decided 5th December, 1884.) Judgment reversed, and new trial awarded. Miller, J., dissented.