Huling v. Cabell. existence at the time of the assignment, there is no violation of correct principles in holding that it is assignable. So in Brackett v. Blake, 7 Metc. 335, it was held a city officer chosen for a year, subject to removal at any time, at the will of the mayor and aldermen, and whose salary is payable quarterly, may legally make an assignment of a quarter's salary before the quarter expires. In Clarke v. Adair, cited in 4 Durnford and East, 343, an officer drew a bill on the agent of a regiment, payable out of the first money which should become due to him, on account of arrears or noneffective money, Lord MANSFIELD held that this was a good assignment. But in these cases, it should be observed that the officers, holding their respective offices at the time of the assignment, had then existing claims to what they assigned, and though these claims were uncertain in amount, or voidable at the pleasure of a third party, still, they were assignable. It has been, in like manner, held that a laborer for a manufacturing company, or other employer, may assign his future wages, even though his hiring be only by the day, and he be liable to be dismissed at any time, or though he works by the piece, and his wages per month vary. Emery v. Lawrence and Trustee, 8 Cush. 151; Hartley v. Tapley, 2 Gray, 565; Lannan v. Smith, 7 id. 150. But in all these cases, there were existing engagements when the assignment was made, and though these engagements might be avoided or terminated at any time, or the measure of the wages was uncertain, still as the future wages arose out of existing contracts, they were regarded as having a potential existence. A question has often been discussed, whether a crop of grain not yet sown may be sold or assigned by the owner of the land. The weight of authority seems to be that such grain, having no actual or potential existence, cannot be assigned. Hutchinson v. Ford, 9 Bush, 318; 15 Am. Rep. 711; Comstock v. Scales, 7 Wis. 159; Milliman v. Neher, 20 Barb. 38; Bank of Lansingburg v. Crary, 1 Barb. 542.* These decisions seem based upon the same principles that are laid down in Low v. Pew, 108 Mass. 347; 11 Am. Rep. 357. In that case, the owners of the schooner which was about to sail on a fishing voyage, made a written agreement * See, contra, Arques v. Wasson (51 Cal. 620), 21 Am. Rep. 718; Everman v. Robb (52 Miss. 653), 24 Am. Rep. 682. See McCaffrey v. Woodin (65 N. Y. 459), 22 Am. Rep. 644, and note, 653. Huling v. Cabell. with a party, whereby they sold, assigned, and set over to him, all the halibut that might be caught during the voyage, at 51 cts. per pound, the purchaser paying in cash $1,500, when the assignment was made. The court held this assignment void, the halibut having no actual or potential existence when the assignment was made. The same principle was followed in Mulhall v. Quinn, 1 Gray, 105. In this case a laborer assigned all the claims he had, or might have, against the city of Boston, for all sums of money due, or to become due, for services in laying common sewers for six months thereafter. It appeared that the laborer had been, previous to the making of this assignment, employed by the city for particular jobs in laying common sewers, and that afterward, during the six months, he was employed by the city for a like particular job at the same price, but when he made the assignment he was under no contract with the city, it was held that the assignment was void. The court say, "that the future earnings constituted a mere possibility, coupled with no interest; that none of the cases go so far as to hold that the mere possibility of being employed by the city, and earning wages under that employment at a future time, is capable of being assigned." MORTON, J., in Lou v. Pew, 108 Mass. 349, thus lays down the law. "It is an elementary principle of the law of sales, that a man cannot grant personal property in which he has no interest or title. To be able to sell property, he must have a vested right in it at the time of the sale. Thus it has been held, that a mortgage of goods, which the mortgagor does not own at the time the mortgage is made, though he afterward acquire them, is void. Jones v. Richardson, 10 Metc. 481. The same principle as to all sales of personal property is applicable. Rice v. Stone, 1 Allen, 566, and cases cited. Head v. Goodwin, 37 Me. 181. It is equally well settled that it is sufficient, if the seller has a potential interest in a thing sold. But a mere possibility or expectancy of acquiring property, not coupled with any interest, does not constitute a potential interest in it, within the meaning of this rule. The seller must have a present interest in the property, of which the thing sold is the product, growth, or increase. Having such interest, the right to the things sold, when it shall come into existence, is a present vested right, and the sale is valid. Thus a man may sell wool to grow upon his own sheep, but not upon the sheep of another; or the crops to grow upon his own Huling v. Cabell. laud, but not upon land in which he has no interest. 2 Kent's Com. (10th ed.) 468, (641) note a; Jones v. Richardson, 10 Metc. 481; Bellows v. Wells, 36 Vt. 599; Van Hooker v. Cory, 34 Barb. 9; Grantham v. Hawley, Hob. 132. The same principles have been applied by this court to the assignment of future wages or earnings. In Mulhall v. Quinn, 1 Gray, 105, an assignment of future wages, there being no contract of service, was held invalid. In Hartley v. Tapley, 2 Gray, 565, it was held, that if a person be under a contract of service, he may assign his future earnings growing out of such contract. The distinction between the cases is, that in the former, the future carnings are a mere possibility, coupled with no interest, while in the latter the possibility of future earnings is coupled with an interest, and the right to them, though contingent and liable to be defeated, is a vested right. In the case at the bar, the sellers, at the time of sale, had no interest in the thing sold. There was a possibility that they might catch halibut; but it was a mere possibility and expectancy, coupled with no interest. We are of opinion that they had no actual or potential possession of, or interest in, the fish, and that the sale to the plaintiffs was void." Applying these principles to the present case, was there any potential interest owned by the West Virginia Agricultural Society, when they made the assignment, in the proceeds which they expected to arise from the Agricultural Fair, to be held in a few days thereafter? It seems to me clearly not. It is true they owned the grounds, upon which they expected to hold the fair, out of which they expected these proceeds to arise, and had advertised holding of the fair in a few days; but in the case just cited, the assignor owned a schooner, which, when the assignment was made, was just about to start on a fishing voyage, in which he expected to catch halibut. The expected proceeds of this Agricultural Fair were no more assignable than were the expected proceeds of the laborer, who, when the assignment was made, anticipated that he would be employed to work on the Boston sewers, as he had been before. His expectation was probably as well founded as that of the West Virginia State Agricultural Society. But he had, when he made this assignment, no existing contract with any one out of which these expected wages might arise, and E here the West Virginia State Agricultural Society had no agree Stockton v. Farsey. ment with any one out of which the proceeds they undertook to assign, might arise. It was a mere expectancy, based on no existing contract, and was, therefore, not assignable. The question has been discussed whether these resolutions of the board of directors amounted to an assignment, and whether this attempted assignment was not fraudulent, and, whether to be valid, it ought not to have been recorded. I do not deem it necessary to consider these questions, as I hold that the proceeds of the fair was incapable of assignment, before the fair was held. [Omitting statutory considerations.] The other judges concurred. Judgment reversed. STOCKTON V. FARSEY. (10 W. Va. 171.) Married woman— - liability to suit. Under a statute permitting married women to take, hold and convey property as if unmarried, a married woman cannot be sued on a contract made by her while married and living with her husband. A CTION of debt; plea of coverture; demurrer; demurrer sustained. The opinion states the facts. W. Mollohan and J. M. Payne, for plaintiff in error. W. H. Hogeman, for defendant in error, cited Code W. Va., ch. 131, §7; 5 Rob. Pr. 50; Buck v. Fouchee, 1 Leigh, 64; 1 Chitty's Pl. 434; Gould's Pl., ch. 5, §§ 85, 88; Code W. Va., ch. 125, § 16; Gould's Pl., ch. 3, §§ 59, 57; 1 Chitty's Pl. 444; Hortons & Hutton v. Townes, 6 Leigh, 58; Gould's Pl., ch. 5, §§ 143, 147; 1 Chitty's Pl. 456, 412, 449; Code W. Va., ch. 125, § 29; 2 Chitty's Pl. 454-5; Tilman v. Shackleton, 15 Mich. 456; Campbell v. White, 22 id. 185; Frecking v. Rolland, 53 N. Y. 422; Hier v. Staples, 51 id. 138; Westgate v. Munroe, 100 Mass. 227; Fiske v. McIntosh, 101 id. 66; Labaree v. Colby, 99 id. 560: Eastabrook v. Earle, 97 id. 302; Ames v. Foster, 3 Allen, 541; Cookson v. Toole, 59 Ill. 515; Rodemeyer v. Rodman, 5 Iowa, 427; Craft v. Rolland, 37 Conn. 498; Mitchell v. Smith, 32 Iowa, 484; Quassaic Nat. Bk. v. Waddell, 8 N. Y. Sup. Ct. 125. Stockton v. Farsey. GREEN, President. [After stating the case.] The first question is whether this plea is a bar to the action or whether it should have been plead in abatement only. It is in the form of a plea in bar, and if it could only have been plead in abatement the plea is fatally defective. By the common law a woman could not be sued upon a contract made by her during her coverture whether joined with her husband or not. Edwards v. Davis, 16 Johns. 286. The contract of a married woman at common law was absolutely void, and no action upon such contract would lie against her. Griffin and Wife v. Reynolds, 17 How. 611. It follows then that a plea that the contract was made by the defendant while she was under coverture must be plead in bar of the action, because, if true, it destroys all right of action at law upon the contract, but if she entered into the contract while sole, and subsequently married, she must plead this in abatement and not in bar, because her defense does not deny any liability, but she simply objects that her husband should be made a joint defendant with her. See 1 Chitty's Pl. 465, and Steer v. Steer, 14 Serg. & R. 379. If then the common law remains unchanged by statute, this plea of coverture alleging that the note was executed during coverture was properly plead in bar; has there been such change. The third section of chapter sixty-six of Code of West Virginia, provides, "any married woman may take by inheritance or by gift, grant, devise or bequest, from any person other than her husband, and hold to her sole and separate use, and convey and devise, real and personal property, and any interest or estate therein, and the rents, issues and profits thereof, in the same manner, and with like effect as if she were unmarried and the same shall not be subject to the disposal of her husband, nor be liable for his debts." So much of our statute as is copied above is taken verbatim from the New York statute of 1848-49. Under the statute the New York courts hold that a married woman could acquire and hold in actual possession and enjoyment a separate legal estate in lands or personal property. Before the passage of this statute a married woman's separate estate was never a legal estate, but was purely equitable. In the case of Cookson v. Toole, 59 Ill. 515, it was held, under an Illinois statute, which, so far as I can judge from what is stated in the report of the case, was similar to the provisions of our law above quoted, that an estate derived under it was a legal, and no longer a mere equitable estate, from which the |