Malloy v. . Acheson

Walker, J., after stating the case as above: We have stated only such provisions of the will as relate to the question presented for our decision. The discussion before us took a wide range, and embraced some matters which we do not deem it necessary to consider. We have been favored with a very able and learned argument on both sides, and have been greatly aided thereby in reaching our conclusion, which we will now state. *94 It appears in the record that every person who has any interest in the land, whether vested or contingent, is a party to the deed, the efficacy of which to pass an indefeasible title to the grantee is the question now before us. Marcellus J. Eagg, the testator, devised his property to his wife for life, for the joint benefit and use of herself and his daughter, Minnie Eagg, and his adopted daughter, Bessie May Eagg, the only child of his brother, Henry C. Eagg; and, subject to this life estate, he then devised certain property to his daughter and adopted daughter for life, and then to their children, the issue of any deceased child to take the share its parent would have taken if living, and he next provided that if either of them should die without child or children the property that would have gone to such child or children, had such been living, should go to the child or children of the survivor of them, and finally he willed that in case both of them should die without issue the property should go to his brother, Henry 0. Eagg, and his heirs forever. Mrs. Minnie Eagg Malloy has had one child,. Eagg Malloy, who died intestate and without issue, and Mrs. Bessie Maxwell, the adopted daughter, has two living children, both of age and unmarried, three of her children having died intestate and without having married. The husband of the plaintiff died in 1915. Henry C. Eagg died in 1913, leaving only one child and daughter, Bessie Maxwell, surviving him. He also left brothers and sisters. The deed was duly executed by Mr. and Mrs. Maxwell and their two daughters to the plaintiff, Minnie Eagg Malloy. It can make no difference what interest Eagg Malloy, the son of the plaintiff, acquired in the land under the will, whether vested or contingent. He left no will, and had not conveyed his interest, and his only heir was his mother, who inherited his estate, whatever it was, at his death. If any interest will pass under the will to the children of Mrs. Maxwell, at the death of Mrs. Malloy without child or children, this interest is conveyed by the deed to the plaintiff, as the children of Mrs. Maxwell, Lois Maxwell and Marcella Maxwell, have joined in the execution of the deed, with their father and mother. So far all persons who have any interest under the will, or otherwise, anterior to Henry C. Eagg, have united in the execution of the deed. Now as to his interest. We will treat the case in this connection as if his interest is contingent, upon the death of both Mrs. Malloy and Mrs. Maxwell without child or children, and when so regarded, for the sake of argument, we find that the person who is to take under the will as the ulterior devisee is certain, though the event upon which he is to take may be uncertain, and in such a case, as we will show hereafter, his estate is devisable, descenda-ble, transmissible, and assignable. His estate will remain contingent, as the event upon which it is to become vested and absolute has not happened. But, though it remains contingent, it is transmissible by *95 descent, and when be died it went to his heirs. He bad only one, at the time of bis death, and that one is Mrs. Maxwell, bis daughter, and she is a grantor in the deed. Her joinder in it passes whatever interest she acquired by descent from her father, Henry C. Fagg, so that there is but a single interest left to be considered, and that is the one as to the possibility that Mrs. Malloy and Mrs. Maxwell may hereafter have a child, or children, and this possibility, while it exists in contemplation of law, is so remote that the parties have agreed to waive it. We held in Williams v. Biggs, 176 N. C., 48, tbat “however we construe the devise, whether as vesting the estate absolutely in the survivors at the death of James A. Roberson, who died without issue, or as creating successive survivorships, the deed tendered by the plaintiff, who derived bis right and title under a deed executed by the three surviving brothers for the land, will convey a good title to the defendant. This is true, because every one who could take an interest under the devise in the will has joined in the deed to certain grantees under whom the plaintiff claims title by mesne conveyance, and it is the same as if they bad conveyed directly to the plaintiff. In any view of the case, the estate was vested absolutely either in all the surviving brothers, or ultimately will so vest in some one or more of them. If any one of them should die, leaving beirs, bis share would descend to such beirs, who, though, would be bound by bis deed. Of course, where the beirs, issue, or children are so designated as to take by purchase, under the terms of the will, there is no estoppel or rebutter as they, do not take from their ancestor by descent, but directly from the devisor as purchasers. Whitesides v. Cooper, 115 N. C., 570. But whether all the sons die without issue or some die without leaving issue, and others die leaving issue, all parties have joined in the deed who have or will have the title to the land. Tbe plaintiff has derived bis title from parties who, if not owners of the land at the time they conveyed it to him, will eventually become the owners in fee simple absolute, and therefore all interest therein has passed to him. It follows tbat the deed tendered to the defendant will convey to him a good and indefeasible title.” And the same was substantially held in Hobgood v. Hobgood, 169 N. C., 485, as will appear from this language of Justice Holce: “Pattie Pippin having died without child or children or the descendants of such, the present estate in fee in the entire property is held and owned by Mollie Hobgood, defeasible at her death without child, etc., and in which event the property would go to the ultimate devisees, the Pippin nephews, and all of these having conveyed their interest, title, and estate to Mollie Hobgood, there is no reason, under the terms of the devise, why she should not presently take and receive the entire fund; our decision on the subject being to the effect tbat when the holders of a contingent estate are specified and known, they *96 may assign and convey it, and, in the absence of fraud or imposition, when such a deed is made, it will conclude all who must claim under the grantors, even though the conveyance is without warranty or any valuable consideration moving between the parties,” citing Kornegay v. Miller, 137 N. C., 659. In our case a valuable consideration was given' for the deed. This Court, in Kornegay v. Miller, supra, states the doctrine as to the assigna-bility of a contingent interest, and shows that a deed for such an estate, or interest, passes it by way of estoppel, or as an equitable right, which will be recognized and enforced. We refer especially to that case, as it states the principle very clearly and discusses it very fully, citing and reviewing the authorities. In Fortescue v. Satterthwaite, 23 N. C., 566, Justice Daniel thus refers to the doctrine: “It is true, as stated in the argument, that a possibility cannot be transferred at law. But by a possibility we mean such an interest, or the chance of succession, which an heir apparent has in his successor’s estate. . . . Executory devises are not considered as mere possibilities, but are certain interests and estates. In Jones v. Roe, 3 T. T., 93, the judges seem to have considered it as settled that contingent interests, such as executory devises to persons who were certain, were assignable. They may be assigned, says Atherly, p. 555, both in real and personal estate, and by any mode of conveyance by which they might be transferred, had they been vested remainders.” Justice Ashe takes up the subject in Bodenhamer v. Welch, 89 N. C., 78, and discusses it with his usual learning and clearness. He says: “Randall Bodenhamer’s interest was contingent, depending upon his surviving his mother. It was not, as contended, a mere possibility, but an estate in the land, an executory devise, or rather a contingent remainder, which is a certain interest. A possibility is defined to be ‘an uncertain thing’ which may happen, or a contingent interest in real or personal estate. Possibilities are divided into, first, a possibility coupled with an interest; this may of course be sold, assigned, transmitted or devised; such a possibility occurs in executory devises and in contingent, springing, or executory uses; and secondly, a bare possibility or hope of succession: this is the case of an heir apparent during the life of his ancestor; it is evident he has no right he can assign, devise, or release.. 2 Bour.vier Law Diet., 253. That executory devises, contingent remainders, and other possibilities, coupled with an interest, may be assigned is maintained in Jones v. Roe, 3 D. & E., 88; Higden v. Williamson, 3 P. Wms., 132; 2 Story, 630; Comehys v. Vasse, 1 Pet., 193; 7 Texas, 25; Fortescue v. Satterthwaite, 23 N. C., 566; and 3 Pars. Const., 475; Burrill Assign., 72; Shep. Touch., 239.” *97 In Kornegay v. Miller, supra, at p. 668, the Court says tbat the assignee acquires an equitable title, not merely the right to enforce an executory contract, and this view is stated with great force in Bispham on Equity (6 ed.), 236, as follows: “The true ground upon which this and similar decisions are to be placed appears to be, that a court of equity enforces such assignments on the ground that the assignee is entitled to have specific performance of the contract to assign, as soon as the property comes into existence, in the band of the assignor. But it must not be understood by this remark that the assignor’s right is merely in the nature of a right to the specific performance of executory contracts, or is to be measured by the limitations by which that equitable remedy is controlled. The assignee’s right is something more. It is a present title, not existent at law, but thoroughly recognized in equity; and to that title equity stands ready to give full effect the instant the property comes into being. It is true that neither in equity nor at law can a contract to transfer property, not then in existence, operate as an immediate and complete alienation, for the simple reason that there is nothing which can be immediately transferred. But instantly upon the acquisition of the thing, the assignor holds it in trust for the assignee, whose title requires no act on bis part to perfect it. The assignee, therefore, has an equitable title from the time of the assignment.” The decision in Clark v. Cox, 115 N. C., 94, is very much in point. The case of Burden v. Lipsitz, 166 N. C., 523, is easily distinguished from this one (and from the cases cited by us where the deed was held sufficient to pass the contingent estate), because there the ulterior limitation was to the heirs of the devisor, and it was held tbat only those who could answer to that description when the contingency happened, and the estate vested, would take under the will, and not the heirs of the devisor at bis death. It, therefore, was uncertain who those heirs would be, until the event bad occurred which would vest the estate absolutely: This being the case, the deed was held not sufficient to pass an indefeasible title, as it could not then be determined whether all the persons who might have an interest in the land bad joined in the deed. But here the ulterior devise is to a person who is certain, viz., Henry C. Fagg. If be bad survived and joined in the deed it would be clear that bis title or interest, though contingent, passed to the plaintiff, Mrs. Minnie Fagg Malloy. His interest or estate, which came to him under the will, contingent though it was, descended, at bis death, to bis sole heir, Mrs. Maxwell, who was bis daughter, and she took it, not under the will, but by descent (Whitfield v. Garris, 134 N. C., 24), as we have said. Her joinder in the deed, as one of the grantors, was as efficacious to pass the contingent interest, which her father took under the will and she ac *98 quired by descent from Mm, as would Ms deed have been for the same interest bad be lived. This follows because the interest which the father got under the executory devise, tbougb contingent, or a possibility coupled with an interest, could, as said above, be sold, assigned, transmitted by descent, or devised. It descended to the daughter, Mrs. Maxwell, when Henry O'. Fagg died (Kornegay v. Morris, 122 N. C., 199), and was assignable by her, and whoever will succeed her in the line of descent from her father will be bound and concluded by her deed. The case of Isler v. Whitfield, 61 N. C., 492, relied on by the defendant, is materially different from tbis case. There the devise of the land was to a grandson, and, if be died without heirs of bis body, to go over; it was held that the first taker and the grandson could not convey a good title, because there was an alternative class to take under the last limitation, namely, the grandchildren generally of the testator, and all of them were not parties to the deed, and were not bound by the deed of the specified grandsons. That is not our ease. Burden v. Lipsitz, supra, likewise relied on, is also different, for there the ultimate limitation was to the testator’s own heirs, wbicb, it was held, could not be determined until the contingency bad happened at the expiration of the life estate. The heirs there took by purchase, or under the will, and not by limitation, while here the devise over is to Henry C. Fagg, and bis heirs, and the word heirs is one of limitation, and not of purchase, and the estate of Henry C. Fagg, therefore, descended to bis only heir, who was Mrs. Maxwell, and her deed concludes those who will come after her in the line of descent, as we have shown. Tbe ulterior devisee, Henry C. Fagg, was a certain person designated to take, while the event upon' wbicb the vesting of bis estate depended was uncertain. When be died bis estate, if vested or contingent, descended to bis heir, who took under him and not under the will. Clark v. Cox, 115 N. C., 94, where the principle is fully discussed by Shepherd, C. J. So far we have dealt witb the case upon the assumption that there may be contingent interests to be taken into account in passing upon the title to the land.' We will now consider it in the other view presented by the plaintiff, that the estates of the children of Mrs. Malloy and Mrs. Maxwell were vested and absolute interests at the birth of each child, and that the devisor did not intend a dying without issue living at the death of Mrs. Malloy and Mrs. Maxwell, but a dying without having bad such issue, and as each of them have bad issue, the limitations over to the children of the survivor have failed. In tbis view, when Fagg Malloy died, bis vested interest went to bis mother, bis father being dead, and the other interests of Mrs. Maxwell and her children also vested, and passed to Mrs. Malloy by the deed. If the estate is such as would open to let in the interests of any after-born children of Mrs. *99 Malloy and Mrs. Maxwell (Irvin v. Clark, 98 N. C., 437), this is provided for by the agreement of the parties to waive any defect in the title arising out of the possible birtb of any sucb cbildren. Tbe conclusion bere is that if the interests are all absolutely vested, and the limitation over to Henry C. Fagg therefore bas failed, by the birtb of cbildren to Mrs. Malloy and Mrs. Maxwell, the deed will pass a good title to the purchaser. We have refrained from passing on the controversy of the parties as to whether the estate was vested absolutely in Mrs. Malloy and Mrs. Maxwell and their cbildren, when born, or whether there is a contingent interest in the cbildren of Henry C. Fagg, as it is not necessary to do so in order to decide the only question before us, which is: Will the deed convey a good title? whether the interests are vested or contingent, and we are of opinion that in either case it will, under the principles we have stated. Affirmed.