Although the grant of a future interest is invalid, yet a precedent declaration may be made, which will take effect on the intervention of some new act.
To pass a right to property by transfer, in goods and chattels, the goods and chattels intended to be transferred must be in existence, and their identity ascertained at the time of the proposed transfer. So, where a contract was made for the sale and purchase of an ascertained cargo of com at a fixed price, the corn then being on board a vessel at sea on its way to Great Britain, and previously to the making of the contract the vessel had been driven by stress of weather into a foreign port, and, the corn becoming heated, had been sold by the shipmaster to prevent total destruction ; it was held that the first-mentioned contract was void, as the vendor had nothing to sell at the time of making the contract, the cargo of corn not being then in existence on board the ship. And, again, where one by deed for valuable consideration assigned to another “ all and singular his goods, household furniture, etc, then remaining and being, or which should at any time thereafter remain and be, in, upon, or about his dwelling-house,” etc. ; it was held that goods subsequently acquired by the assignor and brought into the house did not pass to the assignee under such deed. So in all cases where a man assigns goods and chattels not then in his possession, but the future acquirement of which he contemplates, without including in such assignment a sufficient authority, such as a power of attorney, to take possession of them, and without such taking possession, pursuant to the authority, before some other right, as that of an execution-creditor, intervenes ; the assignment does not operate to pass any interest in such future-acquired goods and chattels. But it is otherwise where there is Much authority T given, and such after-possession taken : for, though a man cannot pass the property in goods he has not, he can give a right to take possession of them when acquired. The following case illustrates the maxim : — Where by bill of sale a farmer assigned all his goods, chattels and effects, and, inter alia, growing crops, with a power to take possession of future-acquired property ; it was held that, as to the future and after-acquired property referred to in the bill of sale, which by the deed the creditor was authorised to seize, but which remained in the possession of the debtor at the time of filing a petition in bankruptcy against him, the creditor could not avail himself of the security, because he had not seized them under his power. Had he seized them, however, and acquired actual possession, pursuant to the power given him by the bill of sale, before the filing of the petition, it would have been as much protected against the other creditors of the assignor as if he had actually been possessed of the property at the time of making the bill of sale.
A tenant's interest in future crops may, however, be passed with his interest in the land, and the crops thereby become the property of the assignee on their coming into existence. Such interest is called emblements ; that is, the right to reap the fruits of seed sown, roots planted, and other artificial produce of the land ; and ingress, egress, and regress to enter, cut, and carry away the same after the tenancy is determined : and this right of the tenant accrues to his grantee, assignee, or devisee, in like manner as it existed in him.
Bac. Max. Reg. 14 ; Co. Litt. 56 ; Shepp. Touch. 244 ; Latham v. Attwood, Oro. Car. 515 ; Com. Dig. Grants, D ; Grantham v. Hawloy, Hob. 132 : Strickland v. Turner, 22 L. J. 115, Ex. ; Price v. Groom, 2 Exch. 542 ; Lunn v. Thornton, 1 C. B. 379; Gale o. BurneU, 7 Q. B. 863; Congreve v. Evetts, 23 L. J. 273, Ex. ; Baker v. Gray, 25 L. J. 161, C. P.; Petch r. Tutin, 15 M. & W. 110 ; Hastio v. Couturier, 9 Exch. 102 ; Barr v. Gibaon, 3 II. & W. 390.