De Haas v. Bunn

Gibson, C. J.

— It is unnecessary to determine the precise nature of the limitation over to John Philip De Haas, and I pretend not to express any opinion on the part of my brethren in regard to it. For myself, however, I may say, that I would feel no hesitation in pronouncing, that as the first limitation in the devise of a moiety of the property to his sister, Henrietta Craig, was for life, and the second was to such child or children as she then had or should have in fee, the further limitation over on the contingency of her dying without issue, the remainder in fee to the son having vested at the death of the testator, was an executory devise; and that it was not too remote; the generality of the word issue being restrained by the words child or children, has been satisfactorily shown by the authorities. The limitations to the daughter’s children, and to her brother in the event of her death without issue, were not concurrent contingent remainders depending on a contingency with a double aspect, on tire happening of which the one or the other would exclusively vest, because the daughter’s son was born in the lifetime of the testator; and as the fee was limited to him neither as an uncertain person, or on the happening of an uncertain event, it vested in him at the testator’s death, so that there could be no further limitation of it except by executory devise. It would seem to me, therefore, that the son had a vested remainder in fee, to take effect in possession' at his mother’s death; and that his uncle had a good limitation in fee mounted on it by executory devise. This however is to be taken only as the opinion of my brother Kennedy and my own. If, however, this last limitation were defeated by the vesting of the fee in the son, the plaintiffs would have no pretence of title, because the defendants have the son’s conveyance of all the estate that was in him.

But taking it, for the sake of the argument, that there was a good executory limitation to the uncle, was his contingent interest in it transferred to the purchaser at sheriff’s sale, under whom also the defendants claim ? It had not vested in interest at the time of the sale, as the son, who was the first devisee in fee, was still living. But it is entirely certain that such an interest may be transferred by assignment even at law, and consequently that it may be sold by execution. The only mere possibility that may not be so transferred, is a bare hope of succession to the property of another, such as may be entertained by an heir apparent. The point is discussed in Atherly on Marriage Settlements, p. 53, where the cases are collected; but it may not be amiss to refer particularly to Gurrall v. Wood, Willes, 211, in which an executory devise was held to be an existing interest, and not a bare possibility.

But was this existing interest sold pursuant to any authority or command in the writ of venditioni exponas ? The return to the fieri facias contained an express affirmation that it had been seized in execution along with the moiety of the property devised immediately to the debtor himself. The command of the venditioni exponas, however, after truly reciting the levy, was to sell the debtor’s vested interest in this moiety, without noticing his contingent interest under the executory devise. The sheriff returned that he had sold “ the within described property,” (described one way in the recital of the levy, and differently in the mandatory part of the writ;) but that he actually sold the contingent interest, as well as the vested one, is conclusively shown by his deed, in which each is expressly included. Why then should we not treat the omission of a special command to sell the contingent interest, as a clerical omission amendable in the proper court, and consequently as actually amended here ?

It is argued, that as .the judgment creditor was not bound to sell the whole property seized, it is impossible to say, the praecipe for the venditioni exponas being lost, that he did not direct the writ to be issued for the sale of a moiety of the premises, supposing that it would produce enough to satisfy the debt. Had not the sheriff expressly conveyed the contingent interest in the other moiety also, a presumption would certainly arise that an authority to sell it had been purposely omitted; but it is inconceivable that the sheriff would have sold it had the fact been so, or that if he had been restrained by the judgment creditor, the fact would have escaped his recollection when he executed the deed. In point of truth, there cannot be a doubt that the gap in the proceedings is a clerical misprision, and why shall we not fill it by giving to the purchaser, or his substitute, the benefit of the contingent interest which he actually bought and paid for ? If the praecipe were before us, showing no special direction to issue for the sale of a moiety, there would be no difficulty in the way of giving the venditioni the effect it would have were it formally amended ; for in Peddle v. Hollingshead, 9 Serg. & Rawle, 277, an omission of the entire command to levy the debt in the body of a levari facias, which was jargon and unintelligible nonsense, was treated as a clerical mistake, and amendable by the praecipe after error brought, a case that is full to the point. But Owens v. Simpson, 3 Watts, 87, is still stronger. In that case, the body of the execution, on which tire return was endorsed and filed, belonged to another suit, and the sheriff had not the semblance or colour of authority in his hands for his-act, yet the whole was amended, or rather reconstructed from the prrecipe, levy, Inquisition, condemnation, and return of sale, all of which are at hand, as materials for amendment, except the praecipe. But at the end of almost forty years, it is not too much to presume, in support of a title, that it contained a direction for a writ which would have formally authorized the sale which was actually made. It is only by patching up errors in matters of mere form, arising from inexperience consequent on the popular principle of rotation in office, that we can hope to preserve the substance of justice. Whether the principle produces more harm than good, in this respect, it is not for us to say; it is sufficient that it is in active operation, and that it is our duty so to deal with its consequences as to benefit by those that are beneficial, and avert those that are prejudicial. We are of opinion, therefore, that all the interest of John Philip De Haas in the premises, whether vested or contingent, passed by the sheriff’s deed and subsequent conveyances to Joseph Rubicam, the defendant’s lessor. Judgment reversed.