Shaw v. Gilmore , 81 Me. 396 ( 1889 )

H a rtctct.t,, J.

The plaintiff claims title to certain hay, cut npon a farm in 1881, by virtue of an equitable mortgage, dated April 19, 1877, of the following tenor:

“For a valuable consideration, to me paid by Charles Shaw of Dexter, I hereby sell to him all the hay that is to be cut on the farm I have bought of him, and I agree to harvest and safely store the said hay in the barn on the said farm, and keep the same without expense to said Shaw, and deliver the same to him on demand. Twenty-five tons of the said hay is to be reserved from this sale for my own use. It is hereby agreed as a condition in this trade that we are to dispose of the said hay from year to year, to the best advantage, and apply the proceeds to the payment of the notes that • yearly become due on the payment of said farm. The crops of 1877 is to be applied in payment of the note that becomes due April 14th, 1878, and the crops of 1878 in payment of the note that becomes due in 1879, and so on from year to year. It is further agreed that I am to keep an amount of insurance on the said hay that will amount to four hundred dollars.”

This is an action at law, and must be decided upon legal and not equitable principles. It is a maxim of the common law, that a man can not grant that which he hath not; but it is well settled, that he may assign that of which he is “potentially, but not actually possessed. He may make a valid sale of the wine that a vineyard is expected to produce, or of the grain a field may grow in a given time.” The sale however can only operate upon a specific thing, as the grass of a particular field during a specified time that the grantor owned the right to cut and gather it in. Emerson v. E. & N. A. Railway Co., 67 Maine, 387; Farrar v. Smith, 64 Maine, 74. Even in equity, an assignment of wages to be earned in the future, but not under an existing employment, must specify the time during which such wages are to be earned, and the employment from which they are expected to arise; and the assignment must neither contravene public policy, nor be inequitable. Edwards v. Peterson, 80 Maine, 367; Lehigh Val. R. Co. v. Woodring, (Pa.) 9 Atl. Rep. 68.

In the present case, tbe grant purports to be of tbe yearly crop of bay for an indefinite period of time. Tbe controversy is over tiie fifth crop, sold by the assignor, who was in possession of tbe same, to a bona fide purchaser. Under tbe rules of the common law, tbe conveyance must be held inoperative as to tbe hay in dispute and, therefore, tbe plaintiff’s title to tbe same fails.

Judgment for defendant and for 'return.

Peters, C. J., Daneorth, Librey, Emery and Foster, JJ., concurred.