Bond v. Bunting , 78 Pa. 210 ( 1875 )

Mr. Justice Sharswood

delivered the opinion of the court, May 10th 1875.

The verdict of the jury on the questions submitted to them in the feigned issue, leaves nothing to be reviewed but the points discussed in the able opinion of the learned president of the court on the motion for judgment. ,

It is not easy to reconcile Kennedy v. Ware, 1 Barr 445, with the subsequent case of Licey v. Licey, 7 Barr 251, in which it was held that delivery of a bond to a stranger passed the right to the debt as a gift. Chief Justice Gibson is reported in the ,latter case to have remarked, when Kennedy v. Ware was cited, “ there is a distinction between a gift and an assignment; the latter is only available in equity and will only be enforced so far as there is a consideration.” But is not a gift an assignment, perfected by a delivery which debars the donor from revocation, and must not the donee of a bond so given sue upon it in the name of the donor ? So he admitted when he came to pronounce the judgment. “ Such a gift would be inoperative at law, for as a bond is not negotiable the legal title would pass only by an observance of the formalities prescribed by the statute; but on the principle of Cross v. Powel, and the authorities already quoted, it would pass the equitable ownership.” That principle, as the chief justice states it, was that if a bond delivered to the obligor to be cancelled, but not cancelled, come again to the hands of the obligee, though valid at law, the obligor will be relieved in equity. His other authorities abundantly show that a bond delivered to be cancelled without consideration, and actually cancelled, is at an end both in law and equity. But all this serves to confirm the doctrine enunciated by Chancellor Kent, in regard to the delivery necessary to perfect a gift. “ Delivery in this, as in every other case, must be according to the nature of the thing. It must be an actual delivery so far a.s the subject is capable of delivery. It must be secundum subjectam materiam, and be the true and effectual way of obtaining the command and dominion of the subject.yTf the thing be not capable of actual delivery, there must be some act equivalent to it. The donor must part not only with the possession, but with the dominion of the property. If the thing given be a chose in action, the law requires an assignment or some equivalent instrument, and the transfer must be actually executed:” 2 Kent Com. 439. To hold otherwise would be in effect to decide that the owner of a chose in action not evidenced by a note, bond or other instrument, could not make a gift of it, which would be an unreasonable limitation of his right of property. There was a very good reason in the case before us for the non-delivery of the policy, because, being for $10,000, the donor retained the sum of $5600, and the whole was to be subject to the payment pro rata of the funeral and other expenses incurred in the last illness of John R. Bond. Taking the instrument to be not an assignment, but a covenant to allow the covenantee to use the name of the covenantor to recover the money for the use declared, the seal at law imported a consideration.

There is, then, a distinction between this case and Kennedy v. Ware, which- was the ease of a parol assignment of a judgment without a delivery or anything which the law holds equivalent to it.

It is certainly the tendency of all the modern authorities to maintain the general doctrine which may indeed be stated as a formula, that wherever a party has the power to do a thing (statute provisions being out of the way), and means to do it, the instrument he employs shall be so construed as to give effect to his intention. It is but the application of the old maxim, interpreta,tio chartarum benigne faeienda est ut res magis valeat quam pereat— quando res non valet ut ago valeat quantum valere potest. It cannot he doubted that Mr. and Mrs. Bond could by a declaration under seal have constituted themselves trustees for the purpose set forth in the statement, and why, if it cannot for want of consideration operate as a good equitable assignment, may it not be effectual as declaration of trust ? The later English authorities certainly sustain the learned president below in his opinion upon this point, and they have been recognised in this court in a recent judgment, though the case was not one which justified their application: Helfenstein’s Estate, 27 P. F. Smith 328.

The remaining question presents no serious difficulty. The provisions of the Married Woman’s Act requiring an acknowledgment by the wife, is confined by its terms to powers given by her to her husband to sell and dispose of her property, real or personal: Haffey v. Carey, 23 P. F. Smith 431, and cases there cited. It follows, that she may assign her choses in action, her husband joining in the act of disposition, without acknowledgment of any kind; nor is any change made by the Act of May 14th 1864 (Pamph. L. 158), which was evidently only intended to quiet a doubt upon the subject. The assignment of a mortgage stands upon a different footing. It is not a mere chose in action, hut also a conveyance of the real estate. The mortgagee is a purchaser within the statute of Elizabeth, and the recording acts apply to him. Judgment affirmed.