horse, and Kyle told him that he would, as Bolin owed him, and he could thus utilize the order. Neither Hayslip nor Kyle knew that the horse was not Bolin's, or of any interest of Stevenson in the transaction. Bolin assigned and delivered the order to Stevenson. When Bolin informed Kyle that he had the order, Kyle credited its amount on Bolin's note to him, but never had possession of the order. When Stevenson presented the order to Kyle for payment, Kyle told him he had applied it on Bolin's note, and refused to pay to Stevenson; and Stevenson sued before a justice, and, on appeal to the circuit court, there were a verdict of a jury and judgment in favor of Kyle, and Stevenson brings the case here.

It is clear that when Bolin, as agent for Stevenson, sold his horse to Hayslip, and for its price took the order in his own name, that order was Stevenson's, though the legal title to the order vested in Bolin, because of the relation of principal and agent; and it falls under that ordinary rule that where one, especially in trust relation, buys property 231 with the funds of another, a trust results for him whose money acquired it, giving him the real ownership, and this no matter whether property be turned into notes or other securities, or vice versa; and it will be followed through any transmutations as long as it can be traced, unless the right of a bona fide holder for value intervene in those cases where his rights call for his protection: Story on Agency, sec. 229; Mechem on Agency, sec. 780; Pumphry v. Brown, 5 W. Va. 107; Hamilton v. Steel, 22 W. Va. 348; Farmers' etc. Bank v. King, 98 Am. Dec. 215. Where the subject is money current or negotiable paper going into the hands of one for value, without notice, it is different: Mechem on Agency, sec. 786; Story on Agency, sec. 228. Where once the character of trust is stamped upon the property, no subsequent dealing with it by the agent or trustee can remove its stamp as between him and the principal or beneficiary: Heiskell v. Powell, 23 W. Va. 717. And, where an agent acquires personal property with funds of his principal, it may be followed into the hands of third persons, though innocent, having no notice of the right of the principal, who purchase for value, as that third person can get no better title than has he from whom the third person derives title: Mechem on Agency, sec. 784; Story on Agency, sec. 229. This doctrine avails at law: 2 Story's Equity Jurisprudence, secs. 1258, 1259. The agent cannot apply it to pay his debt. If he does, the principal may follow and recover it. The agent cannot apply it to his debt, nor release a debt of his principal: Mechem on

Agency, secs. 789, 790. Therefore this order was Stevenson's, and Kyle could not, even with Bolin's knowledge or consent, apply it on Bolin's note. But it was Kyle's own act, and, when he credited the amount of the order, Bolin had not delivered it to Kyle, but either Bolin or Stevenson had it. He did not buy the order, but, on his own motion, credited its amount on Bolin's note to himself. The order given by Hayslip to Bolin was an assignment for so much of any indebtedness of Kyle to Hayslip: First Nat. Bank v. Kimberlands, 16 W. Va. 555. So this order gave Stevenson an assignment of so much of any fund that might be in Kyle's hand belonging to Hayslip, and Kyle could not effectually apply it to Bolin's debt to him.

But next the question comes up: Was there such a fund 237 in Kyle's hands of Hayslip as was capable of being assigned by the order? The thing assigned must have a real or potential existence: Wiant v. Hays, 38 W. Va. 681, 685; Field v. Mayor etc., 57 Am. Dec. 440. Who, if anybody, owed Hayslip? That corporation called the county court of Cabell county-not Kyle, the sheriff; for that court was to pay Hayslip, who was assessor. It was to allow or disallow his compensation, and issue a draft on the sheriff to pay, but never until that draft issued would Kyle, the sheriff, be under any obligation to pay, and then not as an individual, but officially, as sheriff and ex officio county treasurer. It does not appear that the county court had even allowed Hayslip's salary, or issued a draft for it on this sheriff. Therefore, there was not yet in his hands anything which we could say had either a real or potential existence. As the assessor was in the employ of the public, we may say that his demand upon the county had such an existence that an order to the county court from Hayslip would have passed it; but we cannot say the same of an order on Kyle, when it does not appear there was a cent in his hands. And there is another reason against the efficacy of that order as an assignment of Hayslip's salary as an assessor, and that is that the salary or compensation of a public officer is not assignable,, because this would permit the public service to be prejudiced and undermined by the transfer to strangers of funds appropriated to salaries. If it were allowed, the assignee, by notice to the government or its subagents, would be entitled to receive pay directly, and take the place of their assignors in respect to the emoluments, leaving the duties yet to be performed as a barren charge to be borne by the assignors. Needy officers, under present pressure, would assign their future pay, and then neglect the public service. They would assign away the bread

from their mouths. So that the behests of the public service and of the officers both concur in branding assignments of compensation for future service as contrary to public policy, as detracting from efficiency. And is the government or the county court or other subagency of the state government to be embroiled in conflicting claims to salary or compensation? Where would its complications 233 end? If such an assignment is tolerated, we must tolerate it for fractions, and compel the county treasurer to pay part to one, parts to others. Of course, this would never do. Public policy and the orderly dispatch of public business would forbid this. We do not know whether the order was for past or future service of the assessor, but from its date of the 14th of July, I take it that it was for then continuing service, and may as well be said to apply to future as to past service; and I understand that no assignment of quarterly, annual, or other compensation, payable at stated intervals, can be made in the middle of the quarter or year for services continuing, and not then complete. As only past service is assignable, the plaintiff must show that the service had been performed at the date of the assignment. The allowance is annual to an assessor, and some of the service was not yet performed. I do not see clearly why public policy should not prohibit the assignment of pay for past as well as future service, but the books do draw this distinction: Mechem on Public Offices, 874; Bliss v. Lawrence, 58 N. Y. 442; 17 Am. Rep. 273; Bowery Nat. Bank v. Wilson, 122 N. Y. 478; 19 Am. St. Rep. 507; Field v. Chipley, 79 Ky. 260; 42 Am. Rep. 215; Robertson v. Robinson, 65 Ala. 610; 39 Am. Rep. 17; Story's Equity Jurisprudence, sec. 1040 d; Schloss v. Hewlett, 81 Ala. 266; note to Skipper v. Stokes, 94 Am. Dec. 650; Bangs v. Dunn, 66 Cal. 72. So, I conclude, both for the reason that there was in Kyle's hand no fund, and also because its assignment was invalid, that the order in question vested nothing on which recovery could be had.

If it be said that before Bolin took the order he asked Kyle if it would be good, and Kyle said "Yes," it is to be said that Kyle understood that his debtor, Bolin, who owed Kyle much more than the order, was to be its payee, and it was not hinted to Kyle that Stevenson was to be its beneficiary. He had a reason for running the risk that Hayslip would get an order from the county court on him, and that was that he might get so much as the order called for on Bolin's note to him; and he stated to Hayslip, when asked by Hayslip if he might draw the order, that Bolin owed him and he could thus utilize the order; but he

858

had no such reason for agreeing to pay the order to another
His assent to the order would estop
who did 284 not owe him.
him from allowing it to Bolin, but would not deprive him of
right to protest it against Stevenson, for he was guilty of no
conduct which would estop him from denying payment to Steven-

son.

Affirmed.

TRUSTS-RESULTING-PURCHASE OF PROPERTY WITH FUNDS OF ANOTHER.-When land is purchased and paid for by one person, but the conveyance is made to another, the law ordinarily Implies a trust in favor of the former: Deck v. Tabler, 41 W. Va. 332; 56 Am. St. Rep. 837, and note; Riley v. Martinelli, 97 Cal. 575; 33 Am. St. Rep. 209, and note. Implied or resulting trusts arise when land is purchased in the name of one person with the money of another, or when a purchase of land is made by a trustee, in his own name, with trust money; or when such purchase is made by a partner in his own name with partnership funds; or when a conveyance has been obtained by fraud or in similar cases: Tanney v. Tanney, 159 Pa. St. 277; 39 Am. St. Rep. 678.

TRUSTS RIGHT TO TRACE TRUST FUNDS.-A cestui que trust has the right to follow trust funds and to appropriate to himself the property into which such funds have been changed, together with the increased value of such property, provided the funds can be clearly ascertained, traced, and identified, and the rights of bona fide purchasers do not intervene: Holmes v. Gilman, 138 N. Y. 369; 84 Am. St. Rep. 463. See extended notes to Union Nat. Bank v. Goetz, 32 Am. St. Rep. 125-130, and Ferchen v. Arndt, 46 Am. St. Rep. 608-610.

PRINCIPAL AND AGENT-UNAUTHORIZED DISPOSITION BY AGENT OF PRINCIPAL'S PROPERTY-EFFECT OF.-One who intrusts the possession and control of personal property to an agent, who sells it without authority, and without the knowledge of his principal, is not estopped from claiming it in the hands of an innocent purchaser without notice, though the agent was a dealer in property of like character: Gilman Linseed Oil Co. v. Norton, 89 Iowa, 434; 48 Am. St. Rep. 400, and note. See note to Greenberg v. Whitcomb Lumber Co., 48 Am. St. Rep. 922, and extended note to Sale or disposal by agent, Velsian v. Lewis, 3 Am. St. Rep. 201. without authority, of property of principal, other than money, may be disavowed and set aside, even in the case of a bona fide purchas er: Lime Rock Bank v. Plimpton, 17 Pick. 159; 28 Am. Dec. 286. See, also, Overseers v. Virginia Bank, 2 Gratt. 544; 44 Am. Dec. 899.

JORDAN V. BENWOOD.

[42 WEST VIRGINIA, 312.]

PRACTICE-VARIANCES, WHEN NOT MATERIAL.-The fact that the plaintiff in a complaint to recover damages for injuries to a lot describes his estate as that of a reversioner, when it was that of a remainderman, is an immaterial variance.

MUNICIPAL CORPORATIONS-LIABILITY OF FOR NOT FURNISHING DRAINS.-A municipality is not bound to furnish drains to relieve a lot upon a street of surface water, whether its own or that flowing from other premises. It has discretion whether to make drains or sewers or not.

MUNICIPAL CORPORATION-LIABILITY FOR DAMMING UP WATER IN GRADING STREETS.-Though a change in the grade of a street prevents surface water from flowing away from a lot, or, in other words, dams it up, the municipality is not answerable to the owner, if the work was done without negligence, and with reasonable skill, and in the usual way of doing such work and the damage is a mere incident thereof.

MUNICIPAL CORPORATIONS-LIABILITY FOR THROWING SURFACE WATERS UPON A LOT BY GRADING STREETS. Though, by a change in the grade of a street, surface water is thrown upon a lot from such street, the municipality is not liable if the water flowing from such street is merely surface water, and is not collected in large quantities and thrown upon the lot by means of a gutter or other artificial channel.

CONSTITUTIONAL LAW-DAMAGING PROPERTY.-The provision in a constitution providing that property shall neither be taken nor damaged for a public use without just compensation does not render a municipality liable to a lotowner whose property is damaged by a change in the grade of a street whereby surface waters are thrown upon it, if a private individual or corporation might have Inflicted a like injury to a lot owner without being answerable to him therefor. In other words, this provision of the constitution was not designed to make municipal corporations liable to make compensation in damages when an individual would not have been liable for causing injuries or damages of the same character.

REVERSIONER AND LIFE TENANT-RESPECTIVE RIGHT TO RECOVER FOR INJURIES TO PROPERTY.-If there is a tenant for years or life in the actual possession of real property, he can sue and recover damages for any trespass affecting his immediate interest, and the reversioner or remainderman, if the act does a permanent injury to the inheritance, may sue as to that. The claims, however, of the tenant and the reversioner or remainderman are separate and distinct, and the damages sustained by both cannot be recovered in an action brought by one of them only.

REVERSIONER OR REMAINDERMAN-WHEN DEEMED DAMAGED BY INJURIES TO PROPERTY.-If the injury is of a permanent nature, deteriorating the market value to property, so that if the remainderman or reversioner were to sell, it would fetch less money in the market, there is damage to the reversion or remainder for which he is entitled to recover. If the same act affects both his estate and that of the tenant in possession, the damages are apportionable between them, the tenant recovering only for damage to his present enjoyment during his term if it affects the entire term, and the remainderman or reversioner only for the damages to his remainder or reversion.

MUNICIPALITY-EVIDENCE TO CHARGE.-If it is claimed that injury has been done to real property by a city, and it ap