Johnson v. Breeding

• Decision Date: 23 December 1916
• Citation: 190 S.W. 545
• Parties: JOHNSON et al. v. BREEDING et al.
• Court: Tennessee Supreme Court

Page 545

190 S.W. 545

JOHNSON et al. v. BREEDING et al.

Supreme Court of Tennessee.

December 23, 1916.

Certiorari to Court of Civil Appeals.

Suit to quiet title by S. J. Johnson and another, by next friend, against W. J. Breeding and others. A judgment of the chancellor for complainants was affirmed by the Court of Civil Appeals, and defendants bring certiorari. Writ of certiorari denied.

Bryant & Clouse, of Cookeville, for plaintiffs. H. Camp, of Sparta, and O. K. Holladay, of Cookeville, for defendants.

WILLIAMS, J.

The bill of complaint was filed by the minor children of J. L. Johnson, by a next friend, to have canceled as a cloud on their title a deed executed by their father in which he conveyed to Breeding his expectancy as an heir apparent in the realty of his mother, complainants' grandmother, Fannie Johnson.

It appears that this deed was executed in good faith, based on a fair valuable consideration, and was one of general warranty. J. L. Johnson predeceased his mother, and it is the contention of complainants that thereby his expectancy failed of realization; and, instead, the estate that he would have inherited had he survived his mother passed immediately to them as heirs at law of their grandmother, with result that Breeding as grantee took nothing. The chancellor and the Court of Civil Appeals upheld this contention, and we are asked to review the decree of the last-named court.

"Expectancy" is the bare hope of succession to the property of another, such as may be entertained by an heir apparent. Such a hope is inchoate. It has no attribute of property, and the interest to which it relates is at the time nonexistent and may never exist. In re Robbins' Estate, 199 Pa. 500, 49 Atl. 233; Taylor v. Swafford, 122 Tenn. 303, 308, 123 S. W. 350, 25 L. R. A. (N. S.) 442; 9 R. C. L. 135.

However, it is now generally held that an heir apparent's conveyance of his expectancy by deed may, in certain circumstances, be enforced in equity; not, however, on the theory that the grant is one of a present interest or right, but on the theory that the deed is an executory agreement to convey, enforceable as such, or the claim of the grantee worked out by way of estoppel, when the estate comes to the grantor.

Although the grantor has not at the time of the conveyance any right, yet the property on its subsequent acquisition inures to the use of the grantee; or, in the language of Lord Coke, the grantor shall be rebutted and barred when he shall claim against his own warranty.

In this case there was not a subsequent acquisition by the grantor, J. L. Johnson. By reason of his death prior to his mother's he never came to be an heir real; what had been an expectancy was predicated of heirship apparent and it perished without fruition.

The law cast the descent...