Read v. Mosby

• Decision Date: 04 June 1889
• Citation: 11 S.W. 940,87 Tenn. 759
• Parties: READ et al. v. MOSBY et al. SMITHWICK v. SAME.
• Court: Tennessee Supreme Court

11 S.W. 940

87 Tenn. 759

READ et al. v. MOSBY et al.

SMITHWICK v. SAME.

Supreme Court of Tennessee.

June 4, 1889

Appeal from chancery court, Shelby county.

W. P Wilson, for appellants.

Craft & Craft and Frayser & Scruggs, for appellees.

LURTON J.

Complainants are judgment creditors of E. C. Mosby, and have filed this bill, attaching the property described in the pleadings as the property of their debtor, and seek to have their judgments satisfied out of same. The defendant Mrs. M. F Mosby, wife of the debtor, claims title to the attached property, which is real estate, by virtue of an instrument executed to her by her husband, and which is in the following words: "Memphis, Tenn., August 20, 1884. Know all men by these presents, that I, E. C. Mosby, of Shelby county Tennessee, for the consideration of the love and affection I bear her, hereby transfer to my beloved wife, M. F. Mosby all the right, title, and interest which I may hereafter inherit, or that may be bequeathed and devised, of the estate of my father, Samuel Mosby, who is also a resident of Shelby county, Tennessee. It is my meaning and intention to place my said wife in my place and stead in respect to my expectancy from my said father's estate after his death, and it is my desire and intention that all interest which I will have in the lands of which my said father shall die seised and possessed shall vest absolutely in my said wife, and she shall have the like right to all personal effects that would be mine; and this conveyance from me to her comprehends the whole title to the lands, and right to the personal property, moneys, choses in action, and assets of every nature and description. In witness whereof, I, E. C. Mosby, do hereby set my hand and seal the day and year above written. [Signed] E. C. MOSBY." This paper was duly acknowledged and registered before the death of Samuel Mosby. The property attached is an undivided interest in real estate which descended to E. C. Mosby from his father, who died intestate in March, 1886. E. C. Mosby was insolvent at the time of his conveyance of this expectancy, and complainants were then creditors by judgment.

The question is whether this conveyance of a bare expectancy by an heir presumptive is operative, when made upon no other consideration than love and affection, to vest such title and interest in the grantee as will defeat creditors of the conveyance who were creditors both when the deed was made and when by descent cast their debtor became seised of the legal title. For the wife, it has been argued by the learned counsel who have appeared for her that the expectancy, when conveyed, was not liable to creditors, and that, therefore, the grant is not fraudulent, within the meaning of the statute of frauds. The general rule is that, in order to invalidate a gift or other voluntary conveyance under the statute of frauds, the property must be of a kind to which the creditor can resort for payment; for otherwise he is not prejudiced by the conveyance. Leslie v. Joyner, 2 Head, 515; Wagner v. Smith, 13 Lea, 560; Adams, Eq. *147; Story, Eq. Jur. § 361.

No argument is necessary to establish the proposition that the expectancy of a son in the estate of his parent is not such a property interest as is the subject of attachment by a creditor during the life of the parent, and complainants do not put their case on any such absurd ground. In such a case the son has no property right whatever in the estate of the living parent. His hope of an interest upon his death can be denominated by no designation importing any personal interest, and hence is called an expectancy. But if this hope or expectancy imparts no such present interest as can be resorted to by creditors, can it be the subject of such a sale, grant, or assignment during the life of the parent as will operate to vest the title in the assignee when the hope has ripened into an actual interest by descent cast? At the date of the deed under consideration, it is manifest that Mr. Mosby had no title or interest in the property which subsequently came to him by descent, and his deed did not, at the time of its execution, operate to confer upon his wife any title whatever. It does not purport to convey any present interest in possession or remainder or reversion. It is not essential that one should be in the present enjoyment or possession of property in order to validate a conveyance. A vested remainder is as much an estate subject to grant as a feesimple. So there are future estates which are contingent in which the interest is such that a valid assignment may be made, such as estates depending upon the happening of some uncertain event, or limited to some uncertain person, but based upon some existing limitation or conveyance or will. The ordinary contingent remainder or executory devise are examples. "So there are," says Mr. Pomeroy, "a class of interests which are not present existing interests, but which depend upon some executory agreement or contract, and under which the possibility of acquiring future property exists. A court of equity will recognize the assignability of such possibility in proper cases, and, upon the acquisition of such property, enforce the agreement as an executory assignment." Pom. Eq. Jur. § 1286, and cases cited. Personal property not in esse is not the subject of sale, as a general rule. Upon this subject Mr. Benjamin says: "Things not yet existing, which may be sold, are those which are said to have a potential existence; that is, things which are the natural product or expected increase of something already belonging to the vendor. A man may sell the crop of hay to be grown on his field, the wool to be clipped from his sheep at a future time, the milk that his cows will yield in the coming month; and the sale is valid." 1 Benj. Sales, 95. So the sale of an unborn colt has been held valid, and to pass the title to the colt when it comes. McCarty v. Blevins, 5 Yerg. 195. So a crop to be raised upon land of the mortgagor is the subject of a valid mortgage. Tedford v. Wilson, 3 Head, 312; Polk v. Foster, 7 Baxt. 98. "But," says the author just quoted, "he can only make a valid agreement to sell, not an actual sale, where the subject of the contract is something to be afterwards acquired, as the wool of any sheep or the milk of any cows that he may buy within the year, or any goods to which he may obtain title within the next six months." 1 Benj. Sales, 96. Upon this ground a mortgage upon a stock of goods, out of which the conveyor is to sell, and replenish, the mortgage to attach to new goods as acquired, is void. Bank v. Ebbert, 9 Heisk. 153; Bank v. Haselton, 15 Lea, 217. A seeming exception to the latter rule is the case of a mortgage by a railroad company of all its rolling stock then owned, as well...