Bodenhamer v. . Welch

*80 A SHF, J. The only question presented by the record for our determination is, whether the sale of the plaintiff’s interest in the land by his assignee in bankruptcy passed a valid title to the defendant A. PI. Welch. It was contended by plaintiff’s counsel that, the interest of the plaintiff under the will of his father, William Bodeuhamer, was a mere possibility, and though such an interest was embraced in the English statute of bankruptcy, it was not in that of the United States. It is true the term “possibility” is not mentioned in the bankrupt act of the United States, norare contingent interests mentioned in it in so many words; but the statute is broad enough to include every interest of the bankrupt in real and personal property that may be made available for the payment of his debts. Section 5,046 of the act of congress provides that “all the property conveyed by the bankrupt in fraud of his creditors; all rights in equity, dioses in action, patent-rights and copyrights; all debts due him or any person for his use, and all liens and securities therefor; and all his rights of action for property or estate, real or personal, and for any cause of action which he had against any person, arising from contract or from the unlawful taking or detention or injury to the property of the bankrupt; and all his rights of redeeming his property or estate, together with the like right, title, power or authority to sell, manage, dispose of, sue for and recover, or defend the same, as the bankrupt might have had if no assignment had been made, shall in virtue of the adjudication of bankruptcy, and the appointment of his assignee, but subject to the exception stated in the preceding section, be at once vested in such assignee.” Section 14 of the bankrupt act passed to and vested in the assignee every interest of the bankrupt, in real and personal property, and clothed him with the same right, title, power and authority to sell, manage or dispose of, as the bankrupt had before the assignment. *81 The question then arises, had the plaintiff Randall Boden-hamer such an interest in the land described in the petition, as was subject- to be sold or disposed of by him? His 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 execu-tory uses; and secondly, a bare possibility of 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 Bouvier 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's Rep., 630; Comegys v. Vasse, 1 Pet., 193; 7 Texas Rep., 25; Fortescue v. Satterthwite, 1 Ired., 566; and in 3 Pars, on Cont., 475; Burrill on Assign., 72; Shep. Touch., 239. The case of Higden v. Williamson, supra, which is a leading English case, was where one seized of a copy-hold estate surrendered the premises to his last will, and afterwards devised them to his daughter for life, then to trustees to be sold, and the money arising from the sale to be divided among such of his daughter’s children as should be living at her death. The testator died; the daughter had issue, among others, a son, who was a trader and became bankrupt, and the commissioners assigned his estate. The bankrupt got his certificate 'allowed, and then his mother died. The assignees brought their bill for the bankrupt’s share of the money arising from the sale; It was held, that the assignees were entitled to recover because the son in his mother’s life-time might have released his contingent interest. *82 In 3 Parson’s on Contract, 473, it is laid down, that if the interest of the bankrupt rests on a contingency, the assignee takes subject to the contingency, or rather takes the right to recover if the contingency happens. In Watson v. Dodd, 68 N. C., 528, Chief-Justice PearsON, speaking for the court, said that a contingent remainder, like that under consideration, was not assignable at law, but might be assigned in equity; and if assigned, and the assignor received therefor a valuable consideration, and there was no fraud or imposition and the estate afterwards vested, a court of equity would compel the assignor to make title, or else hold the estate as a security for the consideration. There can be no doubt then that the contingent interest of the bankrupt may be assigned, and whether assignable at law or in equity, whatever interest the bankrupt had, vested in his assignee. What then is the assignee to do with it? Is he to hold it until the estate in remainder falls in by the happening of the contingency, which may be so long deferred that the authority of the assignee may have ceased by the determination of the proceeding in bankruptcy? or must he sell and realize what he can for the benefit of the creditors? If the plaintiff had the right to make an assignment of his interest, and we have shown that he had, the bankrupt act gave to his assignee in bankruptcy the very same right of disposition that he had before filing his petition. The plaintiff disposed of his interest in the land by the surrender of it in his schedule in bankruptcy for the benefit of his creditors. By doing so, his.debts were discharged; and that constituted a valuable consideration for his assignment, and when the assignee sold to the defendant A. H. Welch and the contingent remainder fell in by the death of the tenant for life, though the plaintiff acquired the legal estate, he holds it as trustee for the defendant purchaser. If the plaintiff (Bodenhamer) had brought an action in nature of ejectment against the defendant (Welch) to recover the land, there would have been, we presume, no question but that the *83 defendant might have defeated the action by pleading his equitable counter-claim. Stith v. Lookabill, 76 N. C., 465; Farmer v. Daniel, 82 N. C., 152, and cases there cited. And that principle must, we think, govern and be decisive of this case. Our conclusion, therefore, is that Randall Bodenhamer has no share in the partition of the land described in the petition, as a tenant in common. There is no error. Let this be certified to the superior court of Davidson county, that a procedendo may issue to the clerk of the superior court of that county to the end that the cause may be proceeded with in accordance with this opinion and the law. Nor error. Affirmed.