Faldo v. Thurmer , 2 Va. Col. Dec. 73 ( 1753 )

Argol Ransha seised of 300 acres of Land died intestate leaving two Daughters Ann and Sarah to whom the same descended Ann married George Jackson and had Issue by him Ransha George Sarah and Ann Ransha Jackson being seised of a Moiety of the said 300 Acres by Descent from his Mother devised the same by his Will to Rob. Thurmer who had married his sister Sarah for their lives Rem’r in Fee to their Son George Thurmer and died without Issue which Moiety is the Premes in Question Sarah Thurmer had no other Child but George before named And the said Robt. Thurmer Sarah his Wife and George their . Son are all dead George' leaving no Issue and dying in 1725. George Jackson survived George Thurmer and is dead without Issue but Robert Thurmer survived him Ann the other Daughter of Geo. and Ann Jackson is one of the Lessors and as Aunt and Heir at Law of Geo. Thurmer claims the Premises.

George Jackson the Son before the Death of George Thurmer viz. in 1723. by Deed in Cons, of ;£l0. sells to Robt. Thurmer all the Right Title and Interest which he then had or should have at any Time thereafter to all the Land that formerly belonged to Argol Ransha The Deft, is Heir at Law to Robt. Thurmer and sets up a Title under this Deed So that

The Sole Question in this Case is whether this Deed from George Jackson made at a time when he had no Estate Right or Interest can operate at all to Convey the Right which after-wards accrued to him upon the Death of George Thurmer Whose Heir he was For if Nothing passes by this Deed the Title of the Lessors is clear both as Heir of George Thurmer and George Jackson.

[74] It is really admirable that any Lawyer will offer to argue so clear a Point and contend ag’t a Maxim and Rule of Law viz. That a Possibility cannot be granted over or released 1 Inst. 214. a. Which is as well known and as settled a Point as that the eldest Son shall inherit In Westminster Hall I am sure the Court would not suffer an Argument to be made.

When this Deed was made Robt. and George Thurmer were both alive Robert had an Estate for Life and Geo. the Rem’r in Fee What Right or Interest then could George Jackson have It is true he was presumptive Heir to his Nephew and so had a Possibility of having the Land upon his dying without Issue But this Possibility could not be granted over or released as I have sayed. There is a great Difference between a bare Possibility and a future Interest that will certainly happen one Time or other as a Reversion or Rem’r expectant upon the Determination of any particular Estate As in this Case after the Death of Geo. Thurmer George Jackson as Uncle and Heir to him had a Rem’r in Fee expectant upon the Death of Robert and Sara Thurmer and without doubt after George Thurmer’s Death might have granted or released his Interest but having no more than a bare Possibility during Geo. Thurmer’s Life he could not grant or release that but his Deed is absolutely void And if he himself had survived Robt. Thurmer the Tenant for Life he might have entered into the Land against his own Deed.

It must be owned there are Words sufficient in this Deed to carry a future Right if the same was grantable “ All the Estate &c. that I shall have hereafter” Littleton in his chapter of Releases Sect. 466. takes Notice that such Words are usually put in Releases but says they are no Effect because no Right passes but that which the Releasor hath at the Time of the Release made This he illustrates by putting the following Case If there be Father and Son and the Father is disseised and the Son living the Father releases to the Disseisor all the Right which he hath or may have Yet after the Father’s Death he may enter upon the Disseisor ag’t his own Deed for nothing passed by it All the Right when he made the Deed being in His Father I suppose there is the same Reason between any other Ancestor and Heir as between Father and Son And then thir Case is exactly Ours except as to the Disseisin George Thurmes and George Jackson were Ancestor and Heir George Jackson releases or grants it is the same Thing in the Life of George Thurmer This Deed I say is Void and nothing passed by it because all the Right at the Time [75] of the Deed was in George Thurmer I think the Cases are exactly parrallel.

There are besides an infinite number of Cases in the Books where it has been adjudged that a Possibility cannot be granted over assigned or released 4 Rep. 66. b. In Fullwood’s Case 10. Rep. 47. 48. Lampet’s Case 3 Lev. 427. Bishop & Fountain 1 Inst. 265. b. But it is mispending Time to say more in so clear a Point I shall therefore only just observe the Reason and Policy of the Law in not admitting a Possibility to be transferred and it is upon the same Ground that a Thing in Action shall not viz. for avoiding of Maintainance Suppression of Right and Stirring up of Suits 1 Inst. 214. a. which are certainly excellent Reasons and shew the Wisdom and Justice of the Law in discountenancing and prohibiting every Thing that may have a Tendency to such Mischiefs

Judgment for the Pit.