Areson v. Areson.

am satisfied that the idea conveyed to the hearer or the reader, would be precisely the same as though the testator had amplified his language by saying, "I give to my wife all my real estate, I give to her one clock, and I give to her the interest of five hundred dollars for life."

Second. I think an estate in fee, and not a mere life estate, was conveyed by the will, because any other interpretation of the clause we have been considering, leaves the fee of the real estate undisposed of. Not a word appears in the instrument relating to the real estate, save what is expressed in this clause Is it reasonable to suppose the testator would have disposed of his land and dwellings for life, and have descended to the par ticularity of disposing, for life too, as the plaintiff in error insists, of his clock, and the interest of his money, and yet have remained silent as to the ultimate and more important disposition of the fee itself, of all his real estate? The idea is not to be entertained for a moment.

In the third and last place, I think there is some evidence that the testator designed to convey the fee to his wife, in the fact that he has been very particular and cautious not only to dispose finally and forever of all his personal estate, but has also clothed his executors with full powers to sell the same for the purposes of distribution as to some of the children, and of investment as to others; excepting, however, from such power of sale, all personal property which he had therein before willed away. He directs the portions of two of his daughters to be placed at interest, on land security, for their use during life, and after death to be equally divided between their children. Two inquiries suggest themselves. First: Would the testator, in the exercise of a sound judgment, or in the possession of a sound mind, be thus particular and minute as to personal property, and yet be thus indifferent or careless as to real estate, supposing a life estate only to have been given the widow? Second: Would he not have secured the property of the two daughters, which he directs to be invested upon land security, by charging it upon a portion of his own real estate, had he supposed he was only disposing of that real estate for and during the life of his

Stevens v. Wilson.

wife? The former inquiry, I answer in the negative; the latter in the affirmative.

I am of opinion that the judgment of the supreme court shoulċ be affirmed.

On the question being put, "Shall this judgment be reversed?" the members of the court voted as follows:

For reversal: Senators BARLOW, FOLSOM, HAND, HARD, JOHNSON, J. B. SMITH, S. SMITH, SPENCER, WHEELER, WILLIAMS and WRIGHT-11.

For affirmance: The PRESIDENT, and Senators BEERS, BURNHAM, EMMONS, JONES, PORTER, SANFORD, SCOVIL, TALCOTT and VAN SCHOONHOVEN-10.

Judgment reversed.

STEVENS VS. WILSON and others.

The third section of the act relative to principals and factors or agents, (Stat. of 1830, p. 203,) which declares that one entrusted with the possession of the goods of another, for the purpose of sale, shall be deemed the true owner, so far as to give validity to a disposition thereof for money advanced, does not protect a party who has made advances on goods to a factor, with a knowledge that he was not the owner of the goods.

ON error from the supreme court. Wilson and the other defendants in error brought replevin against Stevens, in the superior court of the city of New-York, for a quantity of feathers. Verdict and judgment for the plaintiffs; which judgment was affirmed on error in the supreme court. For a statement of the facts and the opinion of the court, see 6 Hill, 512. The question in the case was, whether the defendant, who had made advances upon the feathers to one Colgate, the plaintiffs' factor, with knowledge that he was not the owner of the property, was entitled to hold it for such advances.

Stevens v. Wilson.

A. Crist, for the plaintiff in error.

S. A. Foot, for the defendants in error.

THE CHANCELLOR. Upon the charge of the judge the jury must have decided that the goods did not belong to Colgate, the factor or agent of the defendants in error, but were in his hands for sale as the factor of the real owners. And I think the judge who tried the cause, as well as the supreme court, was right in supposing that the act of 1830, for the amendment of the law relative to principals and factors or agents, (1 R. S. 762, tit. 5 of 2d ed.) does not authorize the agent or factor for the purposes of sale, to pledge the goods to a person who knows the character in which the pledgor holds the same. Mr. Justice Bronson, who delivered the opinion of the supreme court in this case, has correctly stated the rule of the common law, that an agent or factor, intrusted with the goods of his principal to sell, could not pledge the same so as to authorize the pledgee to hold them for advances made thereon to the factor or agent, even if he supposed the latter to be the real owner of the goods. (Pat erson v. Tash, 2 Strange, 1178; Daubigny v. Duval, 5 T. R. 04.) Even where the principal had drawn upon the factor in anticipation of the sale of the goods, it was held in the cases of Fielding v. Kymer, (2 Brod. & Bing. 639,) and Graham. Dyster, (6 Maule & Sel. 1,) that the factor was not authorized to pledge the goods. In this last case, Mr. Justice Abbott, afterwards Lord Chief Justice Tenterden, said it had been established by many decisions, and might be considered as a settled principle of law, that a factor could not pledge so as to transfer his lien to the pawnee. This rule of the common law was founded upon the principle that he who deals with one acting ex mandato, can obtain from him no better or different title than that which his mandate authorizes him to give.

The statute 4 Geo. 4, ch. 83, passed in July, 1823, altered the common law rule in England in this respect, as to persons dealing with the consignees of factors entrusted with goods for the purpose of sale, so far as to protect the rights of the pledgee to VOL. III.*

60

Stevens v. Wilson.

the extent of the advances he had made, or the liabilities he had incurred, upon the faith of the pledge and the supposition that the nominal consignor, the factor, was the owner of the goods. But this statute contained an express exception of cases where the consignee was aware of the fact that the nominal consignor was not the real owner of the goods. It also contained a provision that the deposite or pledge of goods by the consignee thereof should give to the person with whom they were deposited or pledged the same right, and no other, that the consignee himself possessed. The provisions of that act appear to have been confined to consignees of goods, and persons dealing with them, where the consignees supposed the consignors were the real owners of such goods, when in fact such consignors had only been entrusted with the goods for the purpose of sale. The first section of the act of 6 Geo. 4, ch. 94, passed about two years afterwards, contained but a very slight modification of the previous act, so as to protect the consignee without notice, and others dealing with him, before they had notice that the person in whose name goods were shipped, with the assent of the owner, was not himself the real owner. But the second section of that act extended the protection to persons dealing with an agent or factor who had in his possession documentary evidence showing him prima facie to be the owner of the goods, and where the persons so dealing with him were ignorant of his fiduciary character, and had bought the goods or advanced money or negotiable securities upon the deposit or pledge of the goods and upon the faith of such prima facie evidence of ownership. The third section declared that persons taking such goods in deposit or pledge for an antecedent debt, even without notice of the fiduciary character of the agent or factor having in his possession such prima facie evidence of ownership, should acquire no other right or interest therein, as against the owner, than the agent or factor himself possessed; but might acquire, possess and enforce the right to that extent. And the fifth section expressly authorized the taking of such goods in pledge from the agent, or broker, having such prima facie evidence of title, even with notice

Stevens v. Wilson.

of his fiduciary character; but the pledgee was only to obtain such right or interest therein as the pledgor himself possessed.

Our act relative to principals and factors or agents, in the first and second sections, protects consignees of merchandise shipped in the name of a person who is not the real owner, where they are ignorant of the fact that such consignor is not the owner. The third section then provides that "Every factor or other agent entrusted with the possession of any bill of lading, custom house permit, or warehouse-keeper's receipt for the delivery of any such merchandise, and every such factor or agent, not having the documentary evidence of title, who shall be entrusted with the possession of any merchandise for the purposes of sale, or as a security for any advances to be made or obtained thereon, shall be deemed to be the true owner thereof, so far as to give validity to any contract made by such agent with any other person for the sale or disposition of the whole or any part of such merchandise, for any money advanced, or negotiable instrument or other obligation in writing given by such other person upon the faith thereof." (1 R. S. 762, tit. 5, §3, of 2d ed.) It is perfectly evident from the whole of this section, taken in connection with the second section and the previous law upon the subject, that the words, on the faith thereof, refer to the. ownership of the goods; so as to protect the purchaser, or pledgee, who has advanced his money or given his negotiable note or acceptance or other written obligation, upon the faith or belief of the fact that the person with whom he dealt was the real owner of the property. Any other construction of the statute would do great injustice to the legislature who passed the act of 1830. For it would authorize the agent or factor to commit a fraud upon his principal, with the connivance of the purchaser or pledgee who had notice of the fiduciary character of the vendor or pledgor. It would also be in direct conflict with the seventh section of the same statute, which makes such a fraud an indictable offence, not only against the agent or factor, but also against every person who shall knowingly connive with or aid him in the commission of the fraud.

Our statute does not, as in the fifth section of the 6 Geo. 4,