Purcell's Adm'r v. Mather

STONE, J. It is not important in this case that we should consider whether Mr. Mather can maintain a suit on his contract with Mr. Leslie, by which the latter undertook to mortgage the accounts of Mr. Gilchrist and ■others to the former. That is not the question presented by this record. The question for our consideration is, did the mortgage transfer the ownership in the accounts to Mr. Mather ? Was it a mere executory agreement to sell, ora contract of sale? If the ownership passed to Mr. Mather, then he became “the party really interested,” and could,without more, maintain'an action onIhc account in his own name. When the writing was executed, the account of Mr. Gilchrist had no existence ; and it could not be known, or certainly expected, that such account would ever be created. In speaking of this subject, Chancellor Kent said: “The thing sold must have an actual or potential existence, and bo specific or identified, and capable of delivery ; otherwise, it is not strictly a contract o f sale, but a special, or executory agreement.” — 2 Kent’s Com. (8th ed.) 604, side page 468. In a note it is said, “ a single hope or expectation of means, founded on a right in esse, may be the subject of sale; as the next cast of a fisherman’s net,” &c. “ But a mere possibility or expectancy, not coupled with any interest in, or growing out of property, as a grant of the wool of the sheep the grantor may thereafter buy, or the expectancy of an heir apparent, is void as a sale.” These principles are sustained'by tne authorities, and were quoted with apparent approbation in the case of Robinson v. Mauldin, 11 Ala. 977. See, also, Ravisies v. Alston, 5 Ala. 297; Adams v. Turner, ih. 740; Floyd v. Morrow, 26 Ala. 353; 2 Hilliard on Mortgages, 836; Congreve v. Evetts, 26 Law & Eq. 493 ; Hope v. Hayley, 34 Law & Eq. 189; Stewart v. Kirkland, 19 Ala. 162. We think the doctrine stated above is decisive of this case. The account had no actual existence, nor did it, as we understand the term, have a potential existence. It was a bare possibility. There was no right in esse, out oi which the claim could spring. It was not the transfer of the products of the grantor’s labor. Whether he would [574] perform labor for Mr. Gilchrist, was contingent on tile election of Mr. Gilchrist, who, as far so we are informed, was not a party to the contract. This case must stand on the same principle, as a sale of an expectancy by an heir apparent. It was, at most, an executory agreement. We need not, and do not, announce what would be our decision, if Mr. Gilchrist had been a party to the agreement. Reversed and remanded.