CHAPTER II. OF CONTRACTS RELATING TO CONTINGENT INTERESTS AND EXPECTANCIES. 1502. At common law it has been laid down that the possibility of succession is not an object of disposition, and that if the heir were to dispose of the succession during the life of the ancestor, such disposition would be void, though the inheritance should afterwards have devolved on him. (a)1 However, in a case before the Queen's Bench, the court supported as valid a contract to sell an estate if it should be devised to the vendor by a person then living. (b) § 1503. In courts of equity contracts relating to expectancies have been long upheld, (c) and that although they may in some sort seem to have defeated the intentions of testators, or been in fraud of parental authority. § 1504. One of the earliest cases on the subject is Wiseman v. Roper, (d) where a covenant to settle an estate, to which the covenantor had only an expectancy as heir, was after the descent of the lands specifically enforced against him. § 1505. In Beckley v. Newland, (e) the plaintiff and the defendant had married two sisters, who were the presumptive heiresses of Mr. Turgis, a very rich man, who had made and revoked several wills, and ultimately made one leaving a great estate to the defendant, and only a small one to the (a) Per Lord Kenyon, M. R., in Jones v. Roe, 3 T. R, 93 The Roman law likewise prohibited such contracts. Pothier, Tr. des Oblig, Part I. chap. 1. 8 ct. 4, § 2. (b) Cook v Field, 15 Q B, 460. (c) Cf. Alexander v. Duke of Wellington, 2 R. & My., 35. The statement attributed to Lord Eldon in Carleton v. Leighton (3 Mer., 1 Varick v. Edwards, 11 Paige's Ch., 290; Anderson v. Lewis, 1 Freem. Ch. (Miss.), 178; Baylor v. Commonwealth, 40 Pa. St., 37; Powers' App., 63 id., 443; Masten v. Marlow, 65 N. C., 695. In Kentucky, a contrary doctrine is held Lomry v. Spear, 7 Bush (Ky.), 451. The husband agreed to convey land belonging to his wife, in which he had a life estate by the custody: the wife refused to convey. Held, that the contract could not be specifically enforced, and that he could not be compelled to convey his life estate in the same. McCann v. Jones, 1 Rob. (Va.), 256. An executory verbal contract depended upon an event which might never happen. Held, that equity would not decree specific performance. Bradley v. Morgan, 2 A. K. Marsh, 369. plaintiff. Previously to the execution of the will, the plaintiff and the defendant had entered into a contract for the equal division between them of what should be left to each of them; and this contract was upheld and specifically enforced by Lord Macclesfield, who said that the contract was "not disappointing the intent of the testator, for he did not design to put it out of either of the devisees' power to dispose of the estate after it should come to him; but, on the contrary, when the testator gave it to either of them, he by implication gave that person a power to dispose of the said estate when it should come to him." The same principle was pursued by his Lordship in another like case,(ƒ) and was followed by Lord Hardwicke, in upholding the validity of the conveyance of a contingency or possibly on the death of a sister unmarried.(g) § 1506. In Harwood v. Tooke, (h) the plaintiff and the defendant, the celebrated John Horne Hooke, had made a parol contract to divide what should come to them from a testator: in satisfaction of this the plaintiff had given to the defendant Tooke a note for £4,000, which he had endorsed over to the other defendant, Sir Francis Burdett, for valuable consideration. All that Lord Eldon ultimately decided in the case may have been that the plaintiff had no equity to follow the note into the hands of this purchaser for value; and it appears from one of the reports that he expressed doubts whether the transaction between the plaintiff and the defendant Tooke was not a fraud on the testator, and whether the court would at any rate assist in specifically performing such a contract. But the case has usually been treated as an authority for the validity of contracts relating to expectancies. (i) § 1507. In another case the contract seemed, at first sight, in fraud of the parental authority, but was upheld on a like ground to that taken by Lord Macclesfield. A contract had been entered into by two sons to divide equally between them whatever they might receive from their father in his lifetime or after his decease, by will or otherwise. It was very strongly argued that this was a scheme on the part (f) Hobson v. Trevor, 2 P. Wms., 191. (g) Wright v. Wright, 1 Ves. Sen., 409. (h) 2 Sim., 192, from Mr. Maddock' MS. n.; 1 My. & K., 685. (i) See per Shadwell, V. C., in Wethered v. Wethered, 2 Sim., 191; Hyde v. White, 5 Sim., 524; and per Lord Brougham in Lyde v. Mynn, 1 My. &. K., 693. of the sons to protect themselves from the consequences of misconduct, and to bid defiance to parental authority. But Shadwell, V. C., held that, as the testator had the power of giving an estate to his sons, so that they should have only the personal enjoyment without power of alienation, and did not choose so to give it, but gave it absolutely, he had allowed it to become liable to all their antecedents contracts, and therefore to the contract in question, of which specific performance was accordingly granted.(j) § 1508. Similar in principle is the case of Lyde v. Mynn, () where a husband granted an annuity for his life, and by way of further security covenanted to charge it on all the property he should, in the event of his wife's decease, become entitled to by her will or otherwise; and it was held that no objection could be taken on the ground of its relating to a mere expectancy; and the court accordingly specifically performed the covenant. And so, again, contracts respecting the costs of proceedings in lunacy, or the ultimate division of a lunatic's property are not void. (7) § 1509. In a case recently decided by Denman, J., a husband and his wife had assigned to one of the plaintiffs (who was held by the judge to be a trustee for the other plaintiffs) all the interest to which the wife or the husband might become entitled under the will of C. (who had, at the time, to the wife's knowledge, made his will leaving his residuary estate to her for her separate use), to secure £4,000 borrowed by the husband for the payment of his debts: and C. had died without altering his will. It was held that the wife had power to charge, and had by the contract effectually charged, her expectancy.(m) 1510. The circumstances attending such contracts as those now under discussion, are oftentimes of such a kind as to prevent the court from enforcing them. Such were the circumstances in Morse v. Faulkner(n) in the exchequer, and in the more recent case of Ryan v. Daniel. (0) In the latter case each of the two young officers in the army signed and gave to the other a document, by which each charged his estate with £1,000 in favor of the other, in case the (j) Wethered v. Wethered, 2 Sim, 183. See accordingly Hyde v. White, 5 Sim., 524; Houghton v. Lees, 1 Jur. N. S., 862; 3 W. R., 135 (Stewart, V. C) (k) 1 My. & K., 683. (1) Persse v. Persse, 7 Cl. & Fin., 279. (0) 1 Y. & C. O. C., 60. other should survive him, the consideration of each of these documents being the other of them: many years subsequently a correspondence passed between these officers with a view to a rescission of the transaction, but that intention was never carried into effect. The court held that, looking at the circumstances of the transaction, the age and condition of the parties and their subsequent correspondence, there was no equitable claim which the court would enforce, but it retained the bill for twelve months, with liberty to bring an action to establish, if the plaintiff could, a legal debt. § 1511. It has been judicially suggested that contracts made by a person before the devolution of the estate or other realization of his expectancy are purely personal, and only capable of being enforced against the contractor personally during his lifetime. In Morse v. Faulkner,(p) in 1792, Eyre, C. B., speaking of such a ease, said, "The surrendor not having any title whatever to the premises, at the time of the surrender, his agreement would not raise a lien upon the land; and although the present plaintiffs might have been relieved if they had filed their bill against him in his lifetime, that is after his title had accrued, yet it does not follow that therefore they can be relieved against his heirs. Neither the land itself or the conscience of the present defendants is bound by this act of William the surrenderor." It is however believed that this view has not received any subsequent confirmation.' (p) 3 Sw., 429 n.; shortly reported, 1 Anster, 11. 1 Provision by parents for children.] Equity will often interpose to sustain defective conveyances by parents for children. The same principle is applicable to brothers or sisters. A father, for the purpose of securing a provision for his children, executed deeds of part of his estate to them, retaining the instruments in his possession, and directing his wife to hand them to the clerk for record after his death. This was done. There was no claim by creditor or purchaser. Held, that equity would enforce the instruments. Jones v. Jones, 6 Conn., 111; Belden v. Carter, 4 Day, 66. CHAPTER III. OF CONTRACTS FOR PARTNERSHIP. § 1512. As a general rule, the court will not enforce specific performance of a contract to form and carry on a partnership. (a) And notwithstanding some early authorities more or less to the contrary, (b) it is clear that the court would in no case compel performance of a contract to enter into a partnership not for a definite term :(c) for it might be dissolved as soon as entered upon, and the interference of the court would thus become simply nugatory. 1513. Where, however, the contract defines the term of the partnership, and there has been part performance of the contract, the court may specifically execute it by decreeing the parties to execute a proper deed, and, if necessary, by restraining any partner from carrying on business under the partnership style with other persons, and from publishing notices of dissolution. (d)' § 1514. Whether the court would specifically enforce a contract not in terms to enter into partnership but to execute a deed of partnership to certain terms defined or ascertainable, has never, it is believed, been decided. The argument that such a judgment should be pronounced in ‘order to give the plaintiffs legal rights, seems of much less weight now that the courts of common law and equity are united. (a) Scott v Rayment, L. R 7 Eq., 112; Sichel v. Mosenthal, 30 Beav., 371; and see supra, §§ 73, 824. (b) see per Lord Hardwicke in Buxton v. Lister, 3 Atk., 385; Anon., 2 Ves. Sen., 629; Anon, 1 Mad, Ch., 525 n.; Hibbert v. Hibbert, Collyer, Partn., 133. (c) Hercy v Birch, 9 Ves., 357; Sheffield Gas Consumers Co. (Registered) v. Harrison, 17 Beav., 294; per Kindersley, V. C., in New Brunswick, etc., Co. v. Muggeridge, 4 Drew., 698. (d) England v. Curling, 8 Beav., 129; Hibbert v. Hibbert. Collyer, Paitn., 133. Cf. the pleadings in Bluck v. Capstick, 12 Ch. D., 863. This appears to be clearly the rule. Story's Eq. Jur., § 666; Collyer on Partnership (2d Am. ed.), 107, 110; Byrd v. Fox, & Mis, 574. It has been supposed, however, that the court would go to the length of compelling contracts of partnership; but it is probable that the court will only enforce the execution of partnership deeds, The reason is clear; a contract of partnership is of an essentially personal character; on the lunacy of one partner, the other may apply to the court for a dissolution, and he himself cannot be kept to his part of the contract. So, in general, a partnership is dissolved by the death of either party. It would be of ill consequence in general to say, that, in articles of partnership in trade, where no provision for the death of either is made, they might subsist for benefit of an executor who may not have skill therein." Bat. Specif. Perform., p. 166. |