16 Gratt. 244 | Va. | 1861
delivered the opinion of the court:
The appellant’s claim is founded on1 the assumption that his deed is entirely voluntary. H it was executed for a valuable consideration, in whole or in part, it is certainly valid and effectual, whether it be regarded as an executed, or a merely executory contract. The deed recites that it was executed for a valuable consideration received 'by the grantors, and is evidence of that fact against them, even in a court of equity; though not conclusive evidence, or an estoppel in that court. The deed also recites that it was executed “out of pure love and affection.” And the appellant in his answer denies that any valuable consideration was paid or intended to be paid, and avers that the conveyance was purely voluntary. The evidence tends to support the answer, though it may well be doubted whether both together are sufficient to outweigh the effect of the admission contained in the deed. However that may be, it will be conceded, for the purposes of this case, that the deed was entirely voluntary, and we will proceed to consider the question submitted by the appellant in his answer: Whether a merely voluntary deed, executed under such circumstances, and without any change of the possession of the property, is binding upon him?
The Code, ch. 116, § 1, p. 500, provides, that “no gift of a slave or of any goods and chattels shall be valid, unless by deed or will, or unless actual possession shall have come to and remained with the donee or some person claiming under him.” Under this provision such a
It must be observed, that though the wife united with her husband in this case in signing the deed, it is Ms deed only and not her’s, as the law then in force provided no mode whereby a wife could convey an interest in personalty (except her separate estate); though the present law does provide such a mode. Code, ch. 121, § 4, p. 513; which mode however was not pursued in this case, even if it were governed by the present law.
The counsel for the aj>pellees contend that a wife’s vested remainder in personal estate is not a mere chose in action which the husband must reduce into possession to perfect his title thereto, but vests in him absolutely and immediately jure inariti. So that if the husband should die before the wife and before the determination of the particular estate, the remainder would belong to his personal representative.
If this were so, it would be conclusive of the case against the appellant; as the deed would be an exe
The deed in this case then must be regarded as a conveyance by the husband of his contingent interest in his. wife’s vested remainder in the slaves. And so regarding it, is it valid ?
If it had been for valuable consideration, instead of being voluntary, it would certainly have been valid, (as before stated,) in the event that has occurred; though it would have been ineffectual if the wife had survived the
But what is the effect of a voluntcmj conveyance by the husband of his contingent interest in his wife’s vested remainder in slaves % That is the question we now-have to consider; and it is the only remaining, though most important, question in the case.
An executed gift is valid though voluntary, and passes the title in the subject to the donee. But an executory gift does not, of itself, pass the title; and to perfect it, the aid of a court of equity would be necessary. That court will never aid a volunteer, at least if he be a mere stranger, to perfect his title; unless the property was so transferred as to create the relation of trustee and cesitd que trust. 2 Sug. Yend. 936. A court of equity will not assist to create a trust in favor,, of a volunteer, but where the trust is actually created, equity will enforce its execution. And a party may so constitute himself a trustee, that a court of equity will execute the trust in favor of a volunteer. Ellison v. Ellison, 6 Ves. R. 656;
Then, was the gift in this case executed or executory ? In form it is certainly an executed gift. It is by & present conveyance of an interest; not a contract for & future conveyance. If the interest had been a present or vested one, the conveyance would certainly have been an executed, not an executory gift. But the interest being contingent, it is contended that it could not be conveyed,- and therefore the conveyance cannot be valid as an executed gift. It might in that view still be valid, as an executory, though in the form of an executed contract, if it were founded on valuable consideration. A court of equity would, in that case, treat it as a contract to convey, when the interest, by becoming absolute, should become capable of being conveyed. But being voluntary, a court of equity would not give effect to it in that way, since that court, as before stated, never assists a volunteer to perfect his title.
The question than resolves itself into this : Can such a contingent interest be cowoeyed ? If it can, the interest in this case was conveyed, by a good and valid conveyance. If it cannot, the conveyance is ineffectual, either as an executed or an executory gift.
It is a general rule that property is not only liable for the owner’s debts but may be sold, or even given away, at the pleasure of the owner. 2 Spence’s Eq. Ju. 896. It was a rule of the common law, subject only to a few exceptions, that “no possibility, right, title, nor any thing in action should be granted or assigned to strangers, for that would be the occasion of multiplying contentions and suits.” Id. 850. But the court of chancery, from the earliest times, has given effect to assignments of every kind of future and contingent interests and possibilities
In Kekewich v. Manning, 12 Eng. L. & E. R. 120, decided in 1852, effect was given to a voluntary assignment of an equitable chose in action. Knight Bruce L. J. reviewed the authorities very fully, and in the course of his -opinion expressed himself thus: “As, upon one hand, it is, on legal and equitable principles, we apprehend, clear,'that a person sui juris, acting freely, fairly,
In Voyles v. Hughes, 23 Id. 271, decided in 1853-4, effect was given to a voluntary assignment by deed, of a reversionary interest in stock standing in the name of trustees. Stuart V. C., after referring to the decision in Meek v. Kettlewell, said : “The soundness of the doctrine which treats a deed of assignment complete in form, as a mere agreement, although it in terms assigns and transfers an equitable reversionary interest in personal ' property, and which denies to it in this court, if voluntary, any effect as a transfer of the right to property, has been much questioned. If that doctrine is to prevail, it deprives the owners of reversionary personal property of the right of alienation by one legitimate mode. As abridging the right to alienation, it materially lessens the value to its owners, of the enormous and increasing amount of reversionary personal property. Fortunately, in the recent case of Kekewich v. Manning, a more liberal and enlightened view of the law upon this subject was‘taken.” See other cases referred to in the notes to Ellison v. Ellison, 1 Lead. ca. in Eq. Am. Ed. supra. where the authorities on the subject are fully collected and commented on. See also the case of Jones & wife v. Obenchain, 10 Gratt. 259.
In Dold’s trustee v. Geiger’s adm'rs, 2 Gratt. 98; this court held that dioses in action to which the .wife becomes entitled during her coverture, even though they
It may be stated as the result of all the authorities ; that a voluntary gift valid in law or equity, may be made of any property real or personal, legal or equitable, in possession, reversion or remainder, vested or contingent, and including choses in action unless they be of such a nature as that an assignment of them would be a violation of the law against maintenance and champerty; that such a gift, to be valid, must be complete, and not executory; that what is necessary to the completion of a gift, depends on the nature of the subject, and the circumstances of the case; and that it is always sufficient, though not always necessary to the completion of a gift, at least between the parties, that the donor do everything in his power, or which the nature of the case will admit of, to make it complete.
How let us apply the principles before stated to this case. What was the nature of the interest conveyed ? It was not a mere possibility or expectancy, but a substantial, appreciable interest. It was a legal interest.— The wife had a vested remainder in slaves, expectant upon a life estate. The particular estate and remainder made together but one absolute estate in the slaves.— The assent to the legacy of the particular estate enured to the benefit of the remaindermen, who, though not in actual possession of the remainder during the existence of the particular estate, yet had all the possession of which a remainder is susceptible. The remainder was
Such being the nature of the husband’s interest in this case, it was clearly assignable, with or without consideration. And we think it would have been so, even if it were necessary that administration should be taken on the estate of the wife to reduce the interest into possession ; as, in that case, the administrator of the wife would be but a -trustee for the assignee of the husband. The interest being assignable, it was effectually assigned, in the best, if not the only way in which it could have been, at least to volunteers, by deed duly recorded. And the husband having survived his wife and the life tenant, his assignees are absolutely entitled to her share of the slaves, or of the proceeds of the sale-thereof. The decree ought'therefore to be affirmed.
Degree affirmed.