Comstock v. Gay

Carpenter, J. This is an action for the possession of land. The premises were devised to Asa Comstock, the father of the plaintiff, in fee tail. After issue born the tenant in tail was advised that he owned a fee simple and thereupon he sold the land with covenants of seisin and warranty. In Comstock v. Comstock, 23 Conn., 349, this court held that Asa Comstock was a tenant in tail and that he could only convey a life estate in the property. Thereupon the parties in interest applied to the legislature, and an act was passed validating and confirming the deeds and making good the title of the grantees in fee simple. The case is reserved for the advice of this court. [61] The plaintiff claims that the act was unconstitutional and void, and that the title is in the issue in tail. The defendant claims 'under one of the grantees of Asa Comstock. The question is, whether the legislature had power to confirm the deeds and make good othe title in the grantees. It is not denied that the legislature as parens patrice has power to order the sale of lands of minors and persons non compos. By general statute in this state the courts are authorized in certain cases to order the sale of lands owned by joint-tenants, or tenants in common, and that statute has been held to be constitutional. Richardson v. Monson, 23 Conn., 94. By special act at the instance of the life tenant and against the wishes of the remainder-man, the whole estate was sold, and this court held that the act was valid and the deed good. Linsley v. Hubbard, 44 Conn., 109. If in this case the plaintiff, or any one in his behalf, he then being a minor, had asked the legislature to order the sale of the property, and the legislature had found it to be for his interest that it should be sold, we suppose that the validity of the act would not have been questioned. But the plaintiff well says that the action of the legislature was not invoked for any such reason- — that the petition and the act itself show that it was not the interest of the minors but of other parties that the legislature had in view. The minors were not petitioners, and no one petitioned in their behalf. Nor was this plaintiff in any proper sense a party to the proceeding. The petition alleged that the only children of the said Asa were Nathan and Joseph, that they were minors, and that said Asa was their guardian. These allegations in general terms were found true, and the rights of the minors were supposed to be fully protected in the provision that the avails of the sale should be secured to them. And that is all there is in the proceeding that refers to the minors. It nowhere appears affirmatively and expressly that it was for their interest that the real estate should be sold, or that the sale previously made should be affirmed. If that naked question had been presented to the legislature possibly its action would have been different. [62] We think it better therefore that the act should be vindicated, if at all, on other grounds. The case of Linsley v. Hubbard, supra, in principle perhaps may be regarded as an authority sustaining the action of the legislature in this case; but the two cases do not stand precisely upon the same ground, and, as that case was decided by a divided court, we do not choose to rest our decision wholly upon its authority. It will be noticed that in the cases referred to the parties concerned had vested rights which were affected by the legislation in question, and those rights were carefully protected. In the absence of such protection it would be difficult to sustain the action of the legislature. Sohier v. Massachusetts General Hospital, 3 Cush., 483. But in the case before us the party objecting to the validity of the act of the legislature had not at the time a vested interest. His interest was a mere possibility. He had no estate in the premises and it was not certain that he ever would have. Had he died during the lifetime of his father, as his brother Joseph did, no estate would ever have vested in him. Naked possibilities or mere expectancies of this character are not property in the ordinary sense. They cannot be disposed of by will or deed and are not subject to attachment. Smith v. Pendell, 19 Conn., 107. They are therefore not property, and are not regarded as vested rights beyond legislative control. In England a tenant in tail may bar his issue by levying a fine, suffering a common recovery, and by a deed rvith lineal warranty leaving assets to the heirs. In this state the two former modes of conveyance are unknown, and the latter is the only mode in which the tenant in tail may by his own act bar his issue. But the legislature has full power over such estates. The statute enacting that the estate shall be a fee simple in the issue of the first donee in tail is an exercise of this power. It would have been no greater stretch of authority to have made the estate a fee simple in the tenant in tail. Indeed, it is fully competent now for the legislature to enact that all tenancies in tail shall be tenancies in fee simple. If it may be done by gen [63] eral statute in all cases, it may be done by special statute in particular cases. For the same reason and upon the same principle it is competent for the legislature to authorize a tenant in tail to convey an estate in fee simple; and if it may be authorized it may be subsequently ratified and confirmed. A question as to the effect of an act of the legislature arose in the case of DeMill v. Lockwood, 3 Blatchford, 56. The circumstances were these : — In 1790 Anthony DeMill devised land in tail male to Peter DeMill. Thomas A., a son of Peter, was born in 1799. In 1798 Peter conveyed to Mary Arnold. She, by will, devised the premises to the children of Peter, and died in 1801. In October, 1801, Peter Quintard was appointed guardian of the children of Peter DeMill, who had then been born, namely, Thomas A., two daughters, and a son who died in 1839. As such guardián he presented a petition to the legislature, alleging that his wards were the owners of the premises in fee simple, and prayed for power to sell for the benefit of his wards. Power was granted and the premises were sold in April, 1802. The act provided that the title conveyed should be a fee simple. Three sons were afterwards born to Peter, and he died in 1852. Thomas A. and the three sons born after the conveyance by Quintard, brought ejectment for the premises. In holding that the three younger sons had no title to the premises, Ingersoll, J., says: — “ The legislature would have had a right, by a general law, to declare every fee tail to be a fee simple in the tenant in tail; and, after such general law, an estate in fee tail would, in the tenant in tail, be converted into a fee simple. Such was the course adopted by the legislature of the state of New York. The legislature, by so doing, would not take any right of property from any one and vest it in another. They would not take any strict legal right from any one. For the issue of the donee in tail has no strict legal right until after the death of such donee. During the life of such donee such issue has 'no right in the entailed estate which can be conveyed, but only a possibility or expectancy, or capability of inheriting. [64] He has no right to convey; and, by the common law, such issue majr, in various ways, without any act done by him, or any act left undone by him, be deprived of that possibility or expectancy. The legislature have a right at all times, by a general law, to change the course of the inheritance, and deprive such issue of the capability of inheriting.” That case is in point, and we think the principles therein enunciated are sound. It follows that the legislature had power to declare the estate in Asa Comstock a fee simple; and if they had power to do that, they had power to declare the estate in his grantees to be a fee simple. Our conclusion therefore is that the act of the legislature was valid, and that the title to the demanded premises is in the defendant. We advise judgment for the defendant. In this opinion the other judges concurred.