Pearson, O. J.
This is the second instance at the present
Term, of a case, when in the midst of a trial, the proceedings are abruptly stopped by a motion to dismiss. One on the common law docket,
Garrett
v. Trotter, Ante. 430, and this ease on the equity docket, when after “replication and commissions,” depositions and order of publication, the case is set for hearing, and while being heard is put an end to, by a motion to dismiss.
This mode of procedure is irregular, and gives rise to great inconvenience and useless cost.
At law, the orderly mode of procedure is by demurrer ; or else by motion in arrest of judgment, after the trial.
In equity, by demurrer, or else by reserving in the answer the same right to make the objection at the hearing, as if it had been made a special ground of demurrer.
'This erratic course of a motion to dismiss, in the midst of the hearing, should never be allowed, except, when there is a manifest defect of jurisdiction in regard to the subject matter, as distinguished from a want of jurisdiction in respect to the person ; or a statement of a defective cause of action, as distinguished from a defective statement of a cause of action.; and the plaintiff by his own statement shows affirmatively, that he has no cause of action, and cannot be helped by the power of amendment., or any other indulgence in the reach of the Court.
His Honor considered this case as one of that extreme kind, for that, by the plaintiffs’ own showing, they had a complete remedy at law, and a Court of Equity could, under no conjunction of circumstances, have anything to do with it.
We have here an illustration of the wisdom of adhering to the regular mode of procedure, for, as it turns out, the plaintiffs have not only no
complete remedy at law,
but the defendants seek to turn the tables, and say the plaintiffs have no remedy either
at lame
or
in equity ;
and so the bill should have been dismissed, because they have no
status
in any court, and no right at law or in equity.
The original position and the one on which his Honor acted.
was, that the deed to plaintiffs conveyed the legal title, and so they had a
complete remedy at law.
The deed on its face does not purport to convey the land, but “ the entire interest of Elam Marlow, in all the personal estate of James Marlow, and .also his entire interest, in all the real estate of the said James Marlow, that
he, the said Elam Marlow, may be entitled to, as ene of the children and heirs of the said James Marlow
/ his share being one eighth part of the personal and real estate of the said James Marlow.”
The defendants were compelled to abandon this position; for nothing is clearer, than that to make a grant operative, there must be a grantor, a grantee and a
thing granted ;
here there was grantor and grantee, but nothing that was the subject of a grant; James Marlow being alive. The ingenious counsel for the defendants then fell back on a position in the same line; that although the deed could not take effect, to pass the title directly, yet it operated by way of estoppel; and the .subsequent acquisition of the estate, by the deatli of James Marlow, and the descent cast
fed the estojypel,
and did in fact pass the estate. He was met by the rule, “ an estoppel against an estoppel, doth put the matter at large,” and when the
vente
is apparent on the face of the deed, the party shall not be ■estopped to take advantage of the truth. Coke Lit. 352 b.
Here, the
vente
did appear on the face of the deed, to-wit: that Elam Marlow, had nothing in the land, which could pass by the deed operating as a conveyance or by way of estoppel, for he had nothing which was the subject of a grant. So, that position was likewise abandoned on the argument.
The ingenious counsel then took a position on the other ■extreme of his line of defence, and assumed that the plaintiffs had no
status
in any Court, and no right either in a Court of law or of equity, for that, Elam Marlow, the grantor, had but .a bare expectancy, a possibility to inherit which, so far from being the subject of a grant, was not even á matter in regard to which a contract could be made.
There is a marked difference between what may be the subject of grant, and the subject of an executory contract; any present estate, whether it be in possession, or to be enjoyed in possession, after the determination oí a particular estate, as a reversion or a vested remainder, is the subject oí grant, and the title passes thereby; but a thing not in esse, is not the subject of grant. If A makes a bill of .sale to B, for his next year’s crop, or the next colt of a certain mare, B acquires no title to the crop or to the colt. So a contingent remainder cannot be assigned, although it is transmissible by descent, and according to the modern eases, it may be devised, (therein •overruling the more ancient cases, where it is held, that a contingent remainder, the person being certain, and the event uncertain, cannot be devised, for a devise is a species of conveyance,) so the expectancy of one named in a will as legatee or devisee, or of one who, as in our case, is an heir apparent of his father, cannot be assigned, for he has nothing to assign.
. So, if A makes a deed to B, setting out the fact, that he is in treaty for, and expects to purchase a certain tract of land, and in consideration of, (say $1,000) to him paid, he sells and conveys to B and his heirs, the said tract oí land. The deed does not pass the title directly or by way of estoppel, for there is no estate that can be passed.
In all of these eases, however, although the title does not pass, if there be a valuable consideration to bind the bargain, the party is not without remedy, for in the case of the crop • and the colt,
ut res majis valeat quam pereat”
the law will enforce the'contract, by allowing damages to be recovered, for the breach, and in the other cases, equity will enforce a specific performance, treating it as an executory contract, provided there be a valuable consideration, and the bargain was fairly made, and no undue advantage taken either of the party’s ignorance or of his poverty.
McDonald
v. McDonald, 5 Jones, Eq. 211. Where the cases are all cited and it will be seen that most of them can be reconciled, on the ground, that in the
cases where the Court refuses to recognize the contract of an expectant heir as binding on him, the decision is put on prooí of positive fraud and imposition.
The power of an heir expectant to bind himself by contract, in regard to what may descend to him by the death of the ancestor, is taken to be settled. In some cases, when the consideration is fair and adequate, and no undue advantage has been taken, the decree is for specific performance.
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Pearson, O. J.
This is the second instance at the present
Term, of a case, when in the midst of a trial, the proceedings are abruptly stopped by a motion to dismiss. One on the common law docket,
Garrett
v. Trotter, Ante. 430, and this ease on the equity docket, when after “replication and commissions,” depositions and order of publication, the case is set for hearing, and while being heard is put an end to, by a motion to dismiss.
This mode of procedure is irregular, and gives rise to great inconvenience and useless cost.
At law, the orderly mode of procedure is by demurrer ; or else by motion in arrest of judgment, after the trial.
In equity, by demurrer, or else by reserving in the answer the same right to make the objection at the hearing, as if it had been made a special ground of demurrer.
'This erratic course of a motion to dismiss, in the midst of the hearing, should never be allowed, except, when there is a manifest defect of jurisdiction in regard to the subject matter, as distinguished from a want of jurisdiction in respect to the person ; or a statement of a defective cause of action, as distinguished from a defective statement of a cause of action.; and the plaintiff by his own statement shows affirmatively, that he has no cause of action, and cannot be helped by the power of amendment., or any other indulgence in the reach of the Court.
His Honor considered this case as one of that extreme kind, for that, by the plaintiffs’ own showing, they had a complete remedy at law, and a Court of Equity could, under no conjunction of circumstances, have anything to do with it.
We have here an illustration of the wisdom of adhering to the regular mode of procedure, for, as it turns out, the plaintiffs have not only no
complete remedy at law,
but the defendants seek to turn the tables, and say the plaintiffs have no remedy either
at lame
or
in equity ;
and so the bill should have been dismissed, because they have no
status
in any court, and no right at law or in equity.
The original position and the one on which his Honor acted.
was, that the deed to plaintiffs conveyed the legal title, and so they had a
complete remedy at law.
The deed on its face does not purport to convey the land, but “ the entire interest of Elam Marlow, in all the personal estate of James Marlow, and .also his entire interest, in all the real estate of the said James Marlow, that
he, the said Elam Marlow, may be entitled to, as ene of the children and heirs of the said James Marlow
/ his share being one eighth part of the personal and real estate of the said James Marlow.”
The defendants were compelled to abandon this position; for nothing is clearer, than that to make a grant operative, there must be a grantor, a grantee and a
thing granted ;
here there was grantor and grantee, but nothing that was the subject of a grant; James Marlow being alive. The ingenious counsel for the defendants then fell back on a position in the same line; that although the deed could not take effect, to pass the title directly, yet it operated by way of estoppel; and the .subsequent acquisition of the estate, by the deatli of James Marlow, and the descent cast
fed the estojypel,
and did in fact pass the estate. He was met by the rule, “ an estoppel against an estoppel, doth put the matter at large,” and when the
vente
is apparent on the face of the deed, the party shall not be ■estopped to take advantage of the truth. Coke Lit. 352 b.
Here, the
vente
did appear on the face of the deed, to-wit: that Elam Marlow, had nothing in the land, which could pass by the deed operating as a conveyance or by way of estoppel, for he had nothing which was the subject of a grant. So, that position was likewise abandoned on the argument.
The ingenious counsel then took a position on the other ■extreme of his line of defence, and assumed that the plaintiffs had no
status
in any Court, and no right either in a Court of law or of equity, for that, Elam Marlow, the grantor, had but .a bare expectancy, a possibility to inherit which, so far from being the subject of a grant, was not even á matter in regard to which a contract could be made.
There is a marked difference between what may be the subject of grant, and the subject of an executory contract; any present estate, whether it be in possession, or to be enjoyed in possession, after the determination oí a particular estate, as a reversion or a vested remainder, is the subject oí grant, and the title passes thereby; but a thing not in esse, is not the subject of grant. If A makes a bill of .sale to B, for his next year’s crop, or the next colt of a certain mare, B acquires no title to the crop or to the colt. So a contingent remainder cannot be assigned, although it is transmissible by descent, and according to the modern eases, it may be devised, (therein •overruling the more ancient cases, where it is held, that a contingent remainder, the person being certain, and the event uncertain, cannot be devised, for a devise is a species of conveyance,) so the expectancy of one named in a will as legatee or devisee, or of one who, as in our case, is an heir apparent of his father, cannot be assigned, for he has nothing to assign.
. So, if A makes a deed to B, setting out the fact, that he is in treaty for, and expects to purchase a certain tract of land, and in consideration of, (say $1,000) to him paid, he sells and conveys to B and his heirs, the said tract oí land. The deed does not pass the title directly or by way of estoppel, for there is no estate that can be passed.
In all of these eases, however, although the title does not pass, if there be a valuable consideration to bind the bargain, the party is not without remedy, for in the case of the crop • and the colt,
ut res majis valeat quam pereat”
the law will enforce the'contract, by allowing damages to be recovered, for the breach, and in the other cases, equity will enforce a specific performance, treating it as an executory contract, provided there be a valuable consideration, and the bargain was fairly made, and no undue advantage taken either of the party’s ignorance or of his poverty.
McDonald
v. McDonald, 5 Jones, Eq. 211. Where the cases are all cited and it will be seen that most of them can be reconciled, on the ground, that in the
cases where the Court refuses to recognize the contract of an expectant heir as binding on him, the decision is put on prooí of positive fraud and imposition.
The power of an heir expectant to bind himself by contract, in regard to what may descend to him by the death of the ancestor, is taken to be settled. In some cases, when the consideration is fair and adequate, and no undue advantage has been taken, the decree is for specific performance. In other-cases, when advantage has been 'taken of the necessity of the party, the contract is held as a security for the return of the money actually advanced, together with interest, while in other cases, all relief is refused, because of fraud and imposition. Under which of these three classes, the case in hand will fall, it is not for us now to say, as the plaintiffs will no doubt ask the privilege of amending the bill, so as to make the allegation in respect to the price paid., and the fairness of the transaction more distinct and direct; and also to avoid the objection on account of multifariousness, both in respect to the parties and to the relief prayed for. These matters not being up for consideration before us, upon a motion to dismiss the bill for want of equity.
All of this tends to show how much better it would have been to have let the cause come on for final hearing in the Court below; so that when it did come up to this Court, it could have been disposed of finally.
Error.
Per Curiam. Judgment reversed.
Note. — Justice Eoyden being of counsel in the Court below, did not sit at the hearing of this cause.