We have so far considered this case as though it made no difference whether the sand was severed from the real estate and carried away by one act only, or by two or more; nor do we think that it can make any difference. Under any circumstances, the sand remains the property of the owner of the land until he chooses to abandon the same. We suppose that if the sand were severed from the real estate by one act, and then carried away by another, this proposition would not be questioned, and probably it will not be questioned even if the sand was severed and carried away by a single act; and if the sand remains the property of the owner of the real estate, as we think it does, there can be no good reason why he should not be entitled to all the remedies for its recovery, or for loss or damages for its injury, or detention or conversion, which he might have with respect to any other personal property.
The judgment of the court below will be affirmed.
III. Interests in things the subject of property may change from real to personal, and vice versa.
1. In View of a Court of Law.
33 Kansas, 726. - 1885.
[Reported herein at p. 65.]
55 Indiana, 470. - 1876. [Reported herein at p. 51.]
2. In View of a Court of Equity.
6 Iredell's Equity (N. C), 524. - 1850.
Sarah Ann Wilson, an infant, inherited several tracts of land from her father. By due process of law one tract was sold for the purpose of procuring money to pay decedent's debts; the surplus of the proceeds of the sale was paid to defendant, Perry, as guardian of the infant. Sarah Ann died intestate, while still an infant, leaving no issue, parent, brother or sister, but leaving a grandmother, who is her next of kin, and certain paternal uncles and aunts who are her heirs-at-law. The heirs-at-law bring this bill against the guardian and against Berrier, the grandmother's husband, who claims the fund as personalty, in right of his wife.
Ruffin, C. J. - When a court of equity orders a sale of the real estate of an infant, in order to raise money for a particular purpose, it would not, upon its own principles and independent of any provision by statute, allow its decree to affect the right of succession to a surplus remaining after answering that purpose. The money stands for the land, of which it was the proceeds. That principle, however, has been rendered yet more obligatory by the legislative sanction in the acts of 1812, 1818, and 1827. Rev. Stat. ch. 54, secs. 26, 27, and ch. 85, secs. 7, 8. Accordingly, it has been held that, when the owner died without having capacity to dispose of the fund, it was to be regarded as land, in respect to the right of succession. Scull v. Jernigan, 2 Dev. & Bat. Eq. 144; Gillespie v. Foy, 5 Ired. Eq. 280. Those cases show also, that the receipt of the money by the infant's guardian makes no difference. The acts of that person, or the dealings between him and the infant's administrator, cannot change the equitable nature of the fund, so as to disturb the rights of the heir-at-law. The interest, indeed, which accrued during the infant's life, is personalty, as the profits of the land during that period would have been. But the capital and the interest thereon since her death belong to the heirs-at-law.
3 Wheaton (U. S.), 563. - 1818.
Mr. Justice Washington delivered the opinion of Court. - The incapacity of an alien to take, and to hold beneficially, a legal or equitable estate in real property, is not disputed by the counsel for the plaintiff; and it is admitted by the counsel for the State of Virginia, that this incapacity does not extend to personal estate. The only inquiry, then, which this court has to make is whether the above clause in the will of Robert Craig is to be construed, under all the circumstances of this case as a bequest to Thomas Craig of personal property, or as a devise of the land itself?
Were this a new question, it would seem extremely difficult to raise a doubt respecting it. The common sense of mankind would determine, that a devise of money, the proceeds of land directed to be sold, is a devise of money, notwithstanding it is to arise out of land; and that a devise of land, which a testator by his will directs to be purchased, will pass an interest in the land itself, without regard to the character of the fund out of which the purchase is to be made.
The settled doctrine of the courts of equity correspond with this obvious construction of wills, as well as of other instruments, whereby land is directed to be turned into money, or money into land, for the benefit of those for whose use the conversion is intended to be made. In the case of Fletcher v. Ashburner, 1 Bro. Ch. Cas. 497, the master of the rolls says, that " nothing is better established than this principle, that money directed to be employed in the purchase of land, and land directed to be sold and turned into money, are to be considered as that species of property into which they are directed to be converted, and this, in whatever manner the direction is given." He adds, "the owner of the fund, or the contracting parties, may make land money, or money land. The cases establish this rule universally." This declaration is well warranted by the cases to which the master of the rolls refers, as well as by many others. See Dougherty v. Bull, 2 P. Wms. 320; Yeates v. Compton, Id. 358; Trelawney v. Booth, 2 Atk. 307.
The principle upon which the whole of this doctrine is founded is, that a court of equity, regarding the substance, and not the mere forms and circumstances of agreements and other instruments, consider things directed or agreed to be done as having been actually performed, where nothing has intervened which ought to prevent a performance. This qualification of the more concise and general rule, that equity considers that to be done which is agreed to be done, will comprehend the cases which come under this head of equity.