Dailey v. Springfield , 144 Ga. 395 ( 1915 )

Hill, J.

(After stating the foregoing facts). The controlling question in the case is whether the contract as expressed in the deed from B. W. Springfield 'to Horace Springfield, as set out in the foregoing statement of facts, is legal and enforceable. Section 4117 of the Civil Code of 1910 declares: “A bare contingency or possibility can not be the subject of sale, unless there exists' a present right in the person selling, to a future benefit.” The question arises, did there exist in B. W. Springfield a present right to sell an interest in his mother’s property while she was yet living, or was the thing attempted to be conveyed a bare contingency ? There is no contention that B. W. Springfield had a present right to sell a future benefit at the date of the deed. Our own court seems not to have passed upon the exact question here raised, so far as we have been able to find. But a number of outside jurisdictions have decided the question. In Hoyt v. Hoyt, 61 Vt. 413, 416 (18 Atl. 313), it is said: “At common law agreements for the sale of expectancies are generally held to be pernicious and void, for the reason that they offer temptations to heirs to anticipate the enjoyment of property by making disadvantageous bargains, which tend to their harm and to involve the name and character of the family.” In Poor v. Hazleton, 15 N. H. 564, 566, it is said that such sales are “void as against public policy.” In Boynton v. Hubbard, 7 Mass. 112, it is said: “It is a fraud on the ancestor, productive of public mischief, and void as well at law as in equity.” In this last case the contract was called a wagering contract and declared to be against public policy. Such contracts have been upheld by some courts, where the contracts were shown to be fair and the purchaser bought the expectancy at the full market value; but the weight of authority seems to be otherwise. In the instant case the consideration for the deed was $500, and the plaintiff seeks to recover something like $2000 in money and one half of the real estate.

Our own court has passed upon a case (not exactly like the one at bar) where the principle ruled is the same as that involved here. In Trammell v. Inman, 115 Ga. 874 (42 S. E. 246), where a marriage settlement was “entered into between C and D, wherein C conveyed to B, as trustee for certain purposes, all her rights, interests, and expectancy in the estate of her deceased husband and in the estate of her deceased father, and also her interest in and to the property of any other person by virtue of any gift, devise, or conveyance of any kind whatsoever made to her or to which she might at any time thereafter be entitled by law,” it was held that such settlement was “ineffectual to convey any rights, as it was an attempt to convey a mere naked possibility without any present interest.” In delivering the opinion of the court, Simmons, C. J., said (pp. 877-8) : “That part of the marriage articles in which Mrs. Trammell undertook to convey to a trustee such interest as she might thereafter acquire in the property of any other person by virtue of any conveyance or by law was invalid and ineffectual. She undertook to convey property which she did not possess or have any expectation of possessing and in which she had no present interest whatever. It was no more than a mere chance. Some one might give her property other .than that mentioned expressly, or she might inherit such property, or she might purchase property, and in each case it would come within the broad terms of this settlement. This part of the settlement was an attempt to dispose of a bare naked, possibility, which, in this State, is not the subject of grant or sale. A son can not, in law, convey to another such property as he may inherit from his father who is in life at the time of the conveyance, and yet to do so would be to convey an interest less remote than that sought to be disposed of by the marriage settlement in the present case.” While the last sentence quoted from Judge Simmons is obiter, yet he recognized it to be the true rule. We think the principle decided in the Trammell case is decisive of the instant one. And, to the same effect, see: Purcell’s Adm’r v. Mather, 35 Ala. 570, 573 (76 Am. D. 307); Stover v. Eyclesheimer, 46 Barb. 84, 87; Needles v. Needles, 7 Ohio St. 432 (70 Am. D. 85); Watson v. Dodd, 68 N. C. 528; Davis v. Hayden, 9 Mass. 514; Dart v. Dart, 7 Conn. 250; Boynton v. Hubbard, 7 Mass. 112; McCall v. Hampton, 98 Ky. 166 (32 S. W. 406, 33 L. R. A. 266, 56 Am. St. R. 335). As to a definition of an expectancy, see 2 Fearne on Rem. 22, 23.

The deed purports to convey only the “present rights in and title to and all interests that” the grantor has or may become possessed of by inheritance or deed from his mother, who was then living. This was a mere expectancy. No one is heir to the living, and consequently the grantor had nothing to convey from his mother’s estate while she was in life. The deed was therefore void.

It is contended that the deed contained a covenant of warranty as to the interest' conveyed, and that the grantor is estopped from denying its legality. But the interest he attempted to convey, as already shown, was nothing. The deed only purported to convey and to warrant his interest in his mother’s estate; and as we have seen that he had no interest in his mother’s estate to convey, the rule contended for did not apply. In the decision in White v. Stewart, 131 Ga. 460 (62 S. E. 590, 15 Ann. Cas. 1198), it was held: “If a deed purport to convey the right, title, and interest of the grantor in and to certain described realty, instead of conveying the realty itself, the covenants in the deed will be limited to the right or interest which the grantor has in the property.”

The rulings here made being controlling of the case, the questions raised 'by demurrer, as to whether there is a misjoinder of parties, and whether an administrator upon the estate of Horace Springfield was the proper party to bring or authorize the present suit, are immaterial. What we hold is that no cause of action is set out in the petition, whether brought by an administrator or by the plaintiff herself; and the court did not err in dismissing it upon demurrer. Judgment affirmed.

All the Justices concur.