
    
      W. T. Johnson vs. Frederick Douglass.
    At Law. No. 20,394
    ( Decided October 23, 1882.
    i The Chief Justice and Justices Cox and James sitting.
    1. The 65th rule of court requires bills of exceptions to be settled before the close of the term which may be prolonged for that purpose. A bill of exceptions was brought to the court in General Term, dated twenty-seven days after the close of the term at which the case was tried, while no prolongation of the term was shown to have been ■ordered. On the other hand the entry in the minutes of the court stated that the bill of exceptions taken in the case had been signed and sealed on the last day of the term.
    
      Held, That the court, having the ends of justice in view, would, in such a conflict of dates, give weight to the statement of the minutes and treat the bill as having been signed during the term.
    ’2. A married woman may acquire title to property either by gift or by sale, and when the title is not derived from her husband, it becomes her separate property under the Married Woman’s Act, and she is competent to make contracts concerning it.
    •3. Delivery is not necessary to a transfer of title to personalty, if the vendor and vendee agree that the title is in the vendee, at once and without any further act, it changes hands by that agreement, although no delivery is made.
    ■4. The fact that the vendor consents to the execution by the vendee of a deed of trust upon the goods, is one of the strongest proofs of an intention to pass the title to the property, although no actual delivery of it had been made.
    5. Secs. 677-679, R. S. D. C., give the landlord a lien for his rent upon the goods of the tenant, and not upon the goods of other persons which are upon the demised premises.
    6. Where the tenant’s goods are encumbered by a chattel trust prior to being placed upon the demised premises, the landlord’s lien fastens upon the goods subject to the trustee’s paramount right of property and possession.
    STATEMENT OE THE CASE.
    Motion for new trial on exceptions.
    This was an action of replevin instituted by the trustee in a chattel deed of trust to recover possession of furniture taken in attachment for arrears of rent. It appeared from the evidence that at the time of the purchase of the furniture, and while it was still in the store of the furniture dealer, the purchaser (Mrs. Spaids) conveyed it by a chattel deed of trust to the plaintiff as trustee to secure to the vendor the unpaid purchase-money. The furniture was then removed from the store and placed in the Owen House, of which Mrs. Spaids was the lessee, where it was subsequently attached for arrears of rent, under the provisions of sections 677, 678 and 679, E. S. D. C. Whereupon the trustee in behalf of the vendor, brought this action of replevin.
    At the trial the court instructed the jury that “if the jury find that the goods replevied in this action were in the Owen House at the time the attachment for rent in arrear was levied, then the said goods were responsible for the rent due, notwithstanding the execution of the deed of trust to the plaintiff and the verdict should be for the defendant.” The jury, under this instruction, returned a verdict for the defendant.
    The case was tried during the October Term of the Circuit Court, December 15th and 16th, 1881; but the bill of exceptions tendered by the plaintiff purported to be signed and sealed by the justice “this 10th day of February, 1882, nunc pro iunc,” although it was endorsed by the clerk as filed Jan-, uary 14, 1882.
    On the 14th of January, 1882, the court adjourned the October Term, the following entry being made upon that day in the minutes of the court :
    “ William T. Johnson, trustee, vs. Frederick Douglass. Now again comes here the plaintiff, by his said attorney, and tenders to the court here his bill of exceptions to the ruling of the court on the trial of this case and prays that they may be duly signed, sealed and made .a part of the record, which is done accordingly.”
    The 65th rule of court required that “the bill of exceptions must be settled before the close of the term, which may be prolonged by adjournment in order to prepare it.” The minutes of the court did not show that there had been any prolongation of the terra for that purpose.
    A. C. Bradley and N. H. Miller for plaintiff:
    1. The bill of exceptions in this case is marked by the clerk “filed'January 14, 1882 ;” it is entered in the minutes as filed upon that day before the adjournment; it is signed by the justice who presided at the trial as to each bill as an exception taken at the trial before the jury retired, and with the exception of the actual date given to it conforms in every respect to the requirements of law.
    In the case of the United States vs. Wilkinson, 12 How., 246, the date of the bill of exceptions was April 8,1848, trial was not had till the 7th and 8th of May, 1849, it was insisted that it could not be regarded by the court as legally taken ; the court, however, held that the bill must be regarded as regular, and part of the proceedings.
    In Stanton vs. Embry, 93 U. S., 554, the point was made that the bill of exceptions was not settled and filed as required by rules of this court, but the objection was overruled on the authority of 2 Black, 568, see page 556.
    In U. S. vs. Breitling, 20 How., 252, it is held that when the bill was signed after the adjournment, and without consent of counsel (although a rule of court provided that no bill should be signed after adjournment without consent of ■counsel), under the special circumstances the court will consider the exception properly before it and the court said, and the time within which it may be drawn out and presented to the court must depend on its rules and practice, and on its own judicial discretion. In the case before us the judge who tried the case has deemed it his duty to seal and certify the exception to this court, and under the circumstances stated in the exception and note, we think he was right in doing so, and that this exception is legally before this court as a part of the record of the proceedings of the court below.”
    So that if the case was an ordinary one tried by the justice holding that term of the court, we insist that the integrity of the bills of exception is unimpaired by the attacks made upon them, and that even in the Supreme Court of the United States they would be sustained.
    2. The sale by Breitbarth to Mrs. Spaids of the specific chattels described in the deed of trust, and replevied in this action, the terms of sale having been complied with, passed the property therein, although there was no actual delivery thereof atthe time, Benjamin Sales, secs. 315, 679, and cases cited; Dixon vs. Yates, 5 B. and Ad., 313-333; Warden 
      vs. Marshall, 99 Mass., 306; Marble vs. Moore, 102 Mass., 443; Barrett, vs. Goddard, 37 Mason, 111; Terry vs. Wheeler, 25 N. Y., 524; Means vs. Williamson, 3 Me., 556; Hotchkiss vs. Hunt, 49 Me., 213; Bethel Steam Mill Co. vs. Brown, 57 Me., 9; Olyphant vs. Baker, 5 Denio, 379 ; Hooben v. Bidwell, 16 O., 509.
    The deed of trust to the plaintiff' was executed and ■recorded before the goods were placed upon the leased premises. It was given to secure the deferred payments of the purchase-money for the goods. The vendor parted with the title and possession only upon this security, and the lien of the landlord is subordinate to the deed of trust. Rev. Stat. D. C., sec. 678 ; Webb vs. Sharp, 13 Wall., 14.
    The tenant, Mrs. Spaids, was a married woman living with her husband, having no separate property, so far as the record shows, and if she had separate estate, the contract of renting was not such a contract as could be enforced against her by an action at law, and the proceedings in the action at law are void as against this plaintiff Rich vs. Hyatt, 3 Mac A., 536, 547 ; Bank vs. Partee, 99 U. S., 325 ; Griffith vs. Clark, 18 Md., 457; Morse vs. Tappan, 3 Gray, 411; Dorrance vs. Scott, 3 Whart., 309; Norton vs. Meador, 4 Sawyer, 604; Caldwell vs. Walters, 18 Pa. St., 79; Leonard vs. Bryant, 11 Met., 370; Buffum vs. Ramsdell, 55 Me., 252; Nason vs. Blaisdell, 12 Vt., 165; Vose vs. Morton, 4 Cush., 27; Caswell vs. Caswell, 28 Me., 237.
    Ross & Dean and David S. Hounshell for defendant:
    The minutes of the court show that the appellant, on the 14th day of January, 1882, tendered a bill of exceptions to the rulings of the court on the trial, and that said exceptions were signed, sealed and made a part of the record. But this court, upon inspection of the papers called “exceptions,” will find that said papers bear a different date and do not relate to the 14th day of January, 1882, at all. They call for another day, to wit: Décember 16, 1881. These papers, erroneously denominated exceptions, themselves bear date February 10, 1882, twenty-seven days after the term ended.
    
      Where is the bill of exceptions, settled and made part of the record, January 14,1882 ?
    There is no bill of exceptions of that date presented with the transcript; neither was there any order of court canceling that bill of exceptions and allowing time for the settling-of another.
    The 65th rule of the court requires that the bill of exceptions must be settled within the term at which the case was tried, in the absence of any order to the contrary.
    In this case there was no order of adjournment or prolongation of the term for any such purpose.
    Phillips’ Practice states the law thus :
    “ The bill must be signed and filed with the term at -which the judgment was rendered, without an express order of the court during the term permitting the delay, or where, there-has been consent of parties to the delay, save under very extraordinary circumstances. The case of United States vs. Breitling goes to the extreme verge of the law.” Phillips’ Practice (1878 Ed.), p. 191, citing Muhler vs. Ehlers, 91 U. S., 250; Jones & Morris vs. Sewing Machine Co., Opinion Sup. Ct., Oct. Term, 1877, p. 520: And see also Minor’s Inst., vol. 4, p. 89; 1 Salk., 288; Bacon’s Abr., title, “Bill of Exceptions;" Ex parte Bradstreet, 4 Peters, 107; 6 How., 275.
    In the case of Stanton vs. Embry, 93 U. S., 554, the bill of exceptions was signed during the term the case was tried, though not filed until afterward.
    The papers vouched and miscalled “ bills of exceptions are signed twenty-seven days after the court adjourned. They are intended by the appellant to put upon the record certain exceptions to the rulings of the court at the trial on December 15 and 16, 1882, but in the interim, to wit, on the 14th of January, 1882, the minutes of the court on that day, which was the last day of the October Term, 1881, show that a bill of exceptions was on that day tendered, signed and sealed, and made a part of the record. Surely a bill of exceptions signed twenty-seven days after the term had ended cannot be substituted for the one of the 14th of January, which was on that clay signed, sealed, and made a part of the record. No greater evil could arise than to contradict a record in this manner.
   Mr. Justice Jambs

delivered the opinion of the court :

It is claimed by the appellee that this cash is not properly here, for want of a bill of exceptions. The bill shown to us appears to be dated the 10th of February, while the minutes of the Circuit Court state, under the date of 14th of January, that the court adjourned finally on that day. They state also that on that day a bill of exceptions was duly signed. Of course we are not to presume that the judge signed two sets of bills of exceptions. On the record, then, the case stands thus : the date of the bill names a day which fell after the adjournment of the court term ; the minutes state that it was signed on the last day of the term. We shall treat this bill as having been signed during the term. As we understand counsel on both sides to say that, as a matter of fact, the entry of final adjournment was not made until after the bill of exceptions was signed, we conceive that the ends of justice are served by giving weight to the statement of the record that the bill was so signed, notwithstanding the conflict of dates. We shall consider, therefore, the questions raised and argued upon the exceptions presented.

It was objected that Mrs. Spaids, being a married woman, could not purchase the furniture taken under the writ of replevin, and could not execute a valid deed of trust to the vendor to secure the price. • Neither of these propositions is correct. She could acquire title either by gift or by sale to her. As this title was derived, not from her husband, but from a stranger, the furniture became her separate property, under the Married Woman’s Act, and she was competent to make contracts concerning it. She could convey, it absolutely or mortgage it or pledge it. It was next objected that the deed of trust was executed by Mrs. Spaids before the goods were delivered to her, and, therefore, before title had passed to her by the contract of sale. But delivery is not necessary to a transfer of title to personalty. If the vendor and vendee agree that the title is in the vendee at once and without any further act, it changes hands by that agreement although no delivery is made. It is plain that the contract of the parties intended to pass the title in this-case, and one of the strongest proofs of that intention was the fact that the vendee executed and the vendor accepted a deed of trust which assumed that the title had first passed to the vendee by the contract of sale.

After the execution of this deed of trust the property was placed in the Owen House, which was carried on by Mrs. Spaids, and it is claimed that the landlord had a lien on it for arrears of rent, and that his right of possession under his attachment was paramount to that of the trustee under his deed of trust. The statute relating to landlords and tenant (Sec. 677-679 R. S. D. C.), gives to the landlord a lien upon the goods of the tenant, and not upon the goods of other persons which are upon the demised premises. It is true that the tenant in this case had an interest in the property in question, but the legal title and the right of possession upon default of payment were in the trustee. It was only subject to this right of the trustee that the landlord’s lien could attach. He fastens his lien upon the property just as he finds it; in other words subject to the trustee’s paramount right of property and possession. The instruction to the jury stated a contrary doctrine.

Judgment is therefore reversed and the cause is remanded for a new trial.  