Citation Numbers: 193 Ky. 233
Judges: Clay, Sampson, Whole
Filed Date: 12/13/1921
Status: Precedential
Modified Date: 7/24/2022
Opinion op the Court by
Reversing.
In 1883, Mrs. Susan Snyder owned a farm situated in Daviess county. She had six children, Joseph and James T. Snyder being two sons. Her husband was dead. Her son, Joseph, then an infant, undertook by written contract to sell and convey to his brother, James T., his expectancy in his mother’s landed estate for the consideration’ of $250.00, paid and to be paid in the manner set out in the contract. The mother joined in the writing for the purpose, as stated therein, of securing said interest, •one-sixth to James T. Snyder, after her death. The writing is as follows:
“This indenture-made and entered into this February :27th, 1883, between Joseph Snyder and Susan Snyder of*234 the first part, and James T. Snyder of the second part,, all of Daviess county, Kentucky.
“Witnesseth: That Joseph Snyder has sold to James T. Snyder one undivided sixth of the real estate owned by-Susan Snyder, the mother of the other parties, now to secure said interest to said James T. Snyder after her death, said Susan Snyder unites with Joseph Snyder in the conveyance of said interest in the following tract of land about seven miles from Owensboro, Ky., in Daviess county, on the road from Owensboro to Calhoun, bound east by said road, west by Panther creek, north by the lands of Jane Rapier and south by the lands belonging to the estate of W. Gr. Howard, containing one hundred and seventy-five acres, the part here conveyed being, one undivided sixth of said land above described, in consideration of one pair of mules valued at one hundred and fifty dollars, and one sorrel horse valued at seventy-five dollars, sold and delivered by the party of the second part to Joseph Snyder and in consideration of twenty-five dollars due and payable to said Joseph Snyder on the 1st day of June, 1883, by James T. Snyder, for which sum the party of the second part has executed his note to- said Joseph Snyder to have and to hold said land or said one undivided sixth of said land to him, the said James T. Snyder, and his heirs forever. The said Joseph Snyder warrants and defends the interests aforesaid from all claims.
“In -witness whereof, we hereunto subscribe our names.
his
“Joseph x Snyder mark her
‘ ‘ Susan x Snyder, mark”
The mother, Mrs. Snyder, continued to reside upon, the farm, claim and use it as her own until her death in 1907. Shortly thereafter one of the daughters commenced this action for a sale of the lands belonging to the-estate of Susan Snyder for distribution of the proceeds-among the six heirs. Promptly appellant, Joseph Snycler, answered and concurred in the prayer of the petition,, averring that he was the owner of one-sixth interest therein. Thereupon James T. Snyder, the purchaser of the interest of his brother, Joseph, filed his answer and made it a cross-petition against Joseph Snyder, in which
It has been decided many times by this and other courts of last resort that a deed made while the parent is living, which purports to convey a bare expectancy in land which a child hopes to inherit from the parent is absolutely void. Furnish’s Admr. v. Lilly, &c., 27 R. 226; Smith, &c. v. Dinguid, &c., 8 R. 64; Wheeler’s Executors v. Wheeler, 2 Metcalfe 476; Caulder v. Chenault’s Ex., 154 Ky. 777; Beard v. Griggs, J. J. Marshall (1) 22; Hunt v. Smith, 191 Ky. 443; McCall’s Admr. v. Hampton, 33 L. R. A. 266; Spears v. Spaw, 25 L. R. A. 436 (N. S.); see notes, 32 L. R. A., page 595.
But for the fact that Susan Snyder, owner of the land and mother of Joseph and James T. Snyder, joined in the writing, the transaction under consideration must be held to be void, for to hold otherwise would validate a sale of a mere expectancy by an heir apparent — a sale without a thing in esse, which is utterly repugnant to our law. Some courts hold that such a deed or contract to which the ancestor assents or in which he concurs is valid, but this court is committed to the doctrine that no assent, concurrence, consent or acquiescence of the ancesior which is not expressed in a writing sufficient to divest the ancestor of title, present or in remainder, is un•enforcible and the vendee takes nothing thereby, and in no event can a vendee take title under the deed of the expectant heir, but whatever interest or title he acquires is by virtue of the deed or contract of the ancestor alone; that such assent, acquiescence and knowledge on the part of the ancestor does not impart validity to an otherwise void contract for the sale of an expectancy. Wheeler v.
“The better view,” says the author of 5 C. J., page 862, “seems to be that knowledge and consent of the ancestor, or its absence, is merely a circumstance of great weight upon the issue of unconscionableness or fraud in the transaction.” After stating the rule of some courts that the consent of the ancestor will aid the conveyance If the heir apparent of his expectancy, if the transaction be free from fraud, the text in 5 R. C. L., page 608, is: “Some jurisdictions go still farther and hold that the expectancy of an heir of inheriting his father’s estate is not an interest hi any case capable of assignment in equity any more than at law, and therefore it would seem that the ancestor’s consent becomes immaterial,” and this text is based upon opinions from this as well as other iourts.
The invalidity of these contracts is rested on the ground that it is essential to a sale that the thing to be sold have an actual or potential existence, that a mere possibility or contingency not founded on a right or coupled with an interest can not be the subject of a sale or assignment, Spears v. Spaw, 118 S. W. 275, and on the further ground that as no one can be the heir of a living-person a transaction based on the idea of a future right to succession of a living person is devoid of consideration and can have no effect. - Strong grounds of public policy are also invoked against such conveyances. The case under consideration, however, is somewhat stronger on its facts than any of the cases heretofore considered by this court, for Mrs. Susan Snyder is named in the written contract between Joseph Snyder and James T. Snyder as one of the parties of the first part. While the contract witnesseth: “That Joseph Snyder has sold to James T. Snyder one undivided sixth of the real estate iwned by Susan Snyder,” the mother of the other parties,, ‘she,” the mother, “unites with Joseph in the eonveymce of said interest in the following tract of land for the vurpose of securing said interest to said James T. Snyler at her death.” In none of the other cases which we ave considered did we have a deed or a writing of
The writing under consideration, while making Mrs. Susan Snyder party of the first part, recites that the transaction is one between Joseph and his brother James T., whereby the former sells -to the latter one undivided sixth of the real estate owned by Susan Snyder. She is declared to be the owner, and the facts show her to be the seller and conveyor. The transfer is not to take effect until after the death of Susan Snyder and all of the consideration for the transaction was paid by James T. Snyder to Joseph Snyder. It will further be observed that the contract contains a covenant of warranty on the part of Joseph Snyder, but no such covenant was made or entered into on the part of the mother who owned the land.
Beyond question the deed in form was sufficient to pass title to the real estate. Mrs. Snyder, a widow, the owner of the land, was sui juris. She was named as a grantor and it does not matter that a person having no real interest in the land was likewise so named.
It is admitted that the deed is sufficient in form, but it is argued that it is invalid as to Mrs. Snyder because there is no consideration to support it. In this counsel are in error, for the consideration paid by James T. Snyder to Joseph Snyder at the instance and request of the mother, Susan Snyder, was a sufficient consideration to support the deed. A valuable consideration may be some benefit conferred upon the party by whom the promise is made, or upon a third party at his instance or request or some detriment sustained, at the instance of the party promising, by the party in whose favor the promise is made. Stovall v. McCutchen, 107 Ky. 580. A valuable consideration might consist of anything of any value, and it may be the assumption of an obligation — the mere altering of the condition of the party to be affected. Gregory
Having- reached the conclusion that the deed itself 'is a valid conveyance of a one-sixth undivided interest in the landed estate of Susan Snyder — not by reason of the sale and attempted conveyance by Joseph of an expectany to his brother but by reason of the force and effect of the writing signed by Mrs. Susan Snyder, which we hold to be a valid deed of Mrs. Susan Snyder to her son, James T. Snyder — -it follows that Joseph did not part with his expectancy or right to inherit from his mother, and while he does not take one-sixth of all the lands owned by her at the time of the making of the deed in question, he does take, as do the other heirs, as heir of his mother, a one-sixth of the lands belonging to her espíate at her death — the one-sixth interest sold to James T. being excluded — Joseph takes a one-sixth interest in the five-sixths of the land which Susan Snyder owned at the time and before she made the deed which is the subject of this litigation.
This court does not subscribe to the doctrine that a deed which purports to convey a bare expectancy and is therefore void and inoperative as a grant or conveyance may be upheld in equity as an executory agreement and enforced according to its intent, as some courts have held. A contract upon which the law looks with disfavor, and which is for that reason invalid, can in the nature of things have no force in equity. The rationale is overwhelmingly against such doctrine.
As the judgment below held the deed in question to pass the expectancy of Joseph in his mother’s land to his brother, James T. Snyder, and adjudged Joseph entitled to no interest in the estate of his mother, it must be reversed for proceedings consistent with this opinion.