McCall's Adm'R. v. Hampton
| Decision Date | 17 October 1895 |
| Citation | 98 Ky. 166 |
| Parties | McCall's Adm'r. v. Hampton. |
| Court | Kentucky Court of Appeals |
APPEAL FROM BOYD CIRCUIT COURT.
THOMAS R. BROWN FOR APPELLANT.
JNO. F. HAGER FOR APPELLEE.
JUDGE PAYNTER DELIVERED THE OPINION OF THE COURT.
The appellant, holding by assignment a certain note against Wade Hampton, instituted this action, in which an attachment was obtained and levied on what was claimed to be his interest as an heir at law in certain lands in Boyd county which belonged to his father, William Hampton, who died intestate on the 26th of August, 1889.
Charles H. Hampton, a brother of Wade Hampton, died on the 7th of February, 1889. His personal representative presented his petition in the action and was made a defendant therein. The allegations which it contains are substantially as follows, to-wit: That Wade Hampton was suffering from a cancer and was without means to procure medical treatment for his malady; that his father had expressed a desire to sell part of his land to aid him; that the father was then too infirm to make such disposition of his property; that in order that he might procure medical treatment, in consideration of $800, Wade Hampton sold and by deed conveyed to Charles H. Hampton, all right, title and interest he then had, or might thereafter become entitled to, from the estate of his father, William Hampton, of whatsoever character; that by the deed he attempted to convey to him his whole interest as fully as if he were then seized and possessed of the same, and that the deed contained a covenant of general warranty.
This deed was executed on the 27th of January, 1886, more than three years before the death of the father. To this pleading a demurrer was filed and overruled, and appellant failing to plead further the petition was dismissed and the attachment discharged.
The question raised by the demurrer, and which is to be determined, is, did Charles H. Hampton acquire the interest of Wade Hampton in his father's estate by virtue of the conveyance which he received for it?
That a contingent interest is the subject of transfer and sale there can be no doubt. A contingent estate, which is to vest upon some future event, such as the owner becoming of age, may become the subject of assignment or contract of sale. (Grayson v. Tyler's adm'x, 80 Ky., 363.)
The question in this case is whether a naked possibility or contingency, not founded upon a right or coupled with an interest, can be assigned or sold. Under the common law this could not be done. There is no statute in this State changing the common law on this subject. When the contract was made and the conveyance made to Charles H. Hampton, Wade Hampton did not have any interest in his father's estate. The subject-matter of the contract was not in esse at the time of the contract. A contract of bargain and sale is invalid unless there is a thing or subject-matter to be contracted for. This is absolutely essential to the validity of the contract.
It has been said that "if a son and heir bargains and sells the inheritance of his father this is void because he hath no right in himself." (Coke upon Littleton, 2 Bacon's Abridgment, title Bargain and Sale, 4.)
This question was fully considered in the case of Wheeler's ex'ors v. Wheeler, 2 Met., 474. The court held that the son, who had executed a deed purporting to convey his interest in his father's estate (the father then being alive) to his brother, was, notwithstanding that fact, entitled to recover the interest in the estate which his deed purported to convey.
It is conceded by counsel for appellee that it is essential to the legal validity of a contract that the thing sold must have an actual or potential existence, and that a mere possibility or contingency, not founded on a right or coupled with an interest, can not be the subject of sale or assignment. Notwithstanding this is the common-law rule, it is insisted that the naked possibility or expectancy of an heir to his ancestor's estate may be the subject of a contract of sale for a valuable consideration, and enforced in equity after the death of the ancestor.
There was no claim in Wheeler v. Wheeler that the sale was not in good faith nor for a valuable consideration, still the court held he was entitled to recover.
In the case of Alves v. Schlesinger, 81 Ky., 290., the facts were substantially as they are in the case at bar. The conveyance was for a valuable consideration. After the death of the ancestor a creditor of the heir, who undertook to sell his interest in his ancestor's estate during the ancestor's lifetime, sought to subject such interest to the payment of his debt. The party to whom the contract of sale had been given claimed the interest under the contract, and denied the creditor's right to subject it to the payment of the debt. The court sustained the claim of the creditor.
To recognize the contention of counsel as being correct requires us to overrule Wheeler v. Wheeler and Alves v. Schlesinger. Let us consider if this...
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