
    *Guerrant v. Hocker.
    March, 1836.
    Richmond.
    (Absent Brooke, J.)
    Husband and Wife-Emblements-Severed during' Coverture-Ownership.-Alter marriage ot a female ward, the guardian continues in possession of her land as agent, and reaps the crop of wheat: the ward then dies, and the guardian sells and delivers the wheat as the husband's property, and takes receipts for it in the name of the husband, who, with the guardian’s consent, agrees on the price with the purchaser : Hutu, the wheat was the property of the husband, and the purchaser is liable to him, and not to the guardian, for the price.
    Assumpsit, in the circuit court of Buckingham, brought by Guerrant against Hocker for the price or value of wheat, alleged in the declaration to have been sold and delivered by the plaintiff to the defendant. Plea, the general issue. Trial, and verdict for the defendant. The plaintiff moved the court to set the verdict aside and direct a new trial. The court overruled the motion. The plaintiff excepted; and the court certified the facts proved at the trial, as follows—
    William Moseley guardian of Caroline Moseley, employed one Pankey as overseer on the plantation of his ward for the year 1828. The plaintiff Guerrant married Caroline, the ward, in May 1828. He did not receive actual possession of the plantation and the property upon it; but “Moseley continued to manage the plantation as agent;” and after the marriage of his ward to the plaintiff, sold to the defendant Hooker 670 bushels of wheat, the crop of the year 1828, as wheat of the plaintiff. The price was left open, but was after-wards, with Moseley’s consent, fixed by the plaintiff and the defendant at ninety cents the bushel. The defendant’s receipts for the wheat were taken in the plaintiff’s name, by the overseer who delivered it, and he delivered the receipts to Moseley, by whom he had been *employed. Mrs. Guerrant died in August 1828, after the crop of wheat had been reaped, and before it was sold and delivered to the defendant. The plaintiff, after the death of his wife, gave notice to Moseley, not to receive the money due for the wheat, and to the defendant, not to pay it to Moseley: but the defendant, notwithstanding, paid Moseley the money due for the wheat. The guardian’s bond given by Moseley to the county court, was shewn in evidence; which was in the usual form of the bond of a guardian appointed by authority of the court, — the condition reciting, that William Moseley had been “appointed guardian of Caroline Moseley, orphan of Daniel Moseley deceased, by the court of the county of Buckingham.” And it was agreed, that there was a suit pending in chancery between Guerrant and Moseley, for the settlement of Moseley’s guardianship transactions. And this was all the evidence adduced at the trial.
    The court then gave judgment for the defendant upon the verdict; and the plaintiff appealed to this court.
    Robinson, for the appellant.
    Johnson, for the appellee.
    
      
      Husband and Wife — Property Rights. -See mono-graphic note on “Husband and Wile” appemded to Cleland v. Watson, 10 Gratt. 159.
    
   CARR, J.

I entirely agree in the remark of the appellee’s counsel, that to justify us in reversing this judgment, and sending the cause back for a new trial, we ought to be satisfied that the verdict is clearly wrong; that it is, as judge Roane expresses it, “a plain deviation.” And such I cannot but think it is. We must take Moseley to have been not a testamentary but a common law guardian. The condition of the bond describes him as having been “appointed guardian of Caroline Moseley &c. by the court of the county of Buckingham.” Now, this could not have been truly said, if the appointment had been by will; for though, in such case, the bond is to be given to the court, yet the guardian *is first to appear in open court, and declare his acceptance of the trust, which is to be recorded, 1 Rev. Code, ch. 108, 2, p. 406, and the bond would surely conform to this record. Taking him as a common law guardian, it is clear that his guardianship was terminated by the marriage of the ward. Mendes v. Mendes, 1 Ves. sen. 91. How did the parties consider it? Clearly in the same light; for, though it is stated that no actual delivery of the land was made to the husband (which, by the way, I do not consider necessary to give him the legal possession, there being no adverse holding), yet it is a fact in the case, that after the marriage, “Moseley continued to manage the plantation as agent.” Why not as guardian? because that office had ended by the marriage. As agent for whom? Not for the infant feme covert; she was under a twofold disability to appoint such an agent: of necessity, then, as agent for the husband. The acts of Moseley shew that he understood it thus. When the wheat was severed from the land, it became, as I take it, the clear and absolute property of the husband; and Moseley sold it to the defendant as the wheat of Guerrant, thus shewing whose agent he considered himself. The receipts too, taken of the miller by the overseer, were in the name of Guerrant; he also fixed the price of the wheat, which had been left open ; and to this Moseley assented, thereby again recognizing Guerrant’s ownership. And if it had not been for the plaintiff’s misfortune in losing his wife, we should never have heard of the pretension since set up: but this event could not divest a right already reduced to possession. Further, upon what safe ground could the defendant Hooker refuse to pay to the plaintiff, and pay to the agent, when expressly forbidden to do so? He had acknowledged the ownership of the plaintiff, by giving the receipts as for his wheat, and by after-wards fixing the price with him. Under these circumstances I am of opinion that he paid in his own *wrong, and must pay again to the plaintiff. The judgment must, therefore, be reversed, and the cause sent back for a new trial.

TUCKER, P.

I think it clear, that the property in the wheat sold to Hooker was in the plaintiff Guerrant. He married Moseley’s ward in May 1828, Moseley then holding possession of her land as guardian. What was the effect of that marriage upon the guardianship? It determined it, ipso facto. Lord Hardwicke, indeed, in Roach v. Garvan, 1 Ves. sen. 157, says, the court will not determine a guardianship because of a marriage of a ward of the court; and in Mendes v. Mendes, 3 Atk. 625, he_ is represented as saying, that notwithstanding the marriage of the young earl of Shafts-bury, his guardianship did not determine by his marriage (which, by the way, was, I presume, beyond question); but in the report of that case in 1 Ves. sen. 91, he remarked in addition, that marriage determines the guardianship of daughters, though not of sons. And, truly, it seems impossible it should be otherwise. If the contract of marriage be valid, all the consequences or incidents of that contract must at once ensue. By the marriage the husband at once becomes invested with the right to the society and person of his wife, and her personalty in possession becomes instantly vested in him jure mariti: he is at once invested also, with the right and possession of all her real estate, in lier right; and with her rights of action for whatever, whether of personalty or realty, she may be wrongfully deforced of. All her rights determine during the coverture, and are swallowed up in his; and if the guardianship as to her property were to continue, the guardian would from the date of the marriage be his guardian, not hers.

If then, as I take it, the guardianship -determined on the marriage, how did Moseley hold the land until Mrs. Guerrant’s death? The case proved states that he held *it as agent; not totidem verbis, that he held as agent of Guerrant, but it is plain that that was meant. In the absence of a statement to the contrary, we must take it, that he held as agent of the person entitled: and that was Guerrant. Accordingly, when the crop was severed, he sold it as Guerrant’s. Holding, then, as Guerrant’s agent, his possession was Guerrant’s possession ; and when the wheat was severed, the possession of it by Moseley was Guerrant’s possession. So far from his holding possession adversely, he actually sold it in Guerrant’s name, and took the receipts to him, and not to himself, for the wheat that was delivered. Indeed, he could have had no other possession than as agent. He came in by right, and he who has gained a rightful possession, cannot without some tort convert it into one which is wrongful. He could not make that possession adverse, which he received as fiduciary. His possession, therefore, was the possession of Guerrant from the moment his powers determined. He, at most, could only be, tenant by sufferance, whose possession is the possession of the landlord : but, in fact, he claimed no longer to hold but as agent, for it is found that after the marriage “he continued to manage the farm as agent.”

The wheat, then, having been the absolute property of Guerrant, having been sold by Moseley toHockeras Guerrant’s, Hooker should have paid him, instead of paying the proceeds of sale over to Moseley, after notice not to do so. The action therefore was properly sustainable, and the verdict wrong. A single consideration will prove this. Had Moseley sued Hooker for the wheat, which was Guerrant’s property, he must have sued upon the special contract: quantum valebat would not have lain, because there was a sale for an agreed price. But the special contract on which the suit must have been brought, was not a contract with Moseley. It was a contract in which Moseley was expressly contracted with as the agent of Guerrant, and all the receipts *were in Guerrant’s name. How, then, could Moseley have recovered?

The other judges concurred. Judgment reversed, and cause remanded for a new trial.  