Mr. Cheif Justice Breese
delivered the opinion of the Court:
The view we have taken of the case presented by this record, renders it unnecessary to consider the question whether the deed of November 3, 1858, did or did not create a perpetuity by limiting the estate upon a contingency so remote as to . avoid it for that reason. "We have neither the time nor the inclination, as a proper decision of the case does not demand it, to explore that field, or to discuss the abstruse subject of a condition and a conditional limitation of an estate, and the refined and subtle distinctions between them. We place the decision upon the appellant’s agreement, as manifested by that deed, to which he was a willing party, and which, with a full knowledge of all the facts, he executed, and for a valuable consideration.
To what did appellant consent and agree by his executing that deed ? He agreed that his intended wife, the party of the first part, was seized and possessed in her own right of a considerable amount of real and personal property; that a marriage was intended between the party of the first part and the appellant, the party of the second part, and that it was their united wishes that this property, and such other property as she might thereafter become possessed of, by inheritance or otherwise, from any source other than her intended husband, should be settled upon her, for her sole and separate use, for her natural life; that in consideration of this marriage, áppellant agreed that the party of the first part should grant, bargain, sell, assign and set over to Zebulon S. Ely, David J. Ely and George Payson, who were the parties of the third part in the same deed, and to their heirs and assigns forever, all the personal property and effects, together with all the issues, rents and profits and income of her real estate, in possession or expectancy, to her sole use and benefit, her heirs and assigns, until the intended marriage should take place.
He further consented and agreed, that, after the marriage, the personal property and effects, and the rents, profits and income of the real estate, should be held by these trustees in trust, to the sole, separate and exclusive use and benefit of appellant’s wife, free from his debts, control or interference, and to be paid over to her on her separate receipt, and they were required to sell, alien, mortgage or incumber, any or all of the real estate, as she might in writing, under seal, appoint. It was further agreed by and between these several parties, that, in the event of the death of the party of the first part leaving a child or children capable of taking by inheritance, the trustees were to hold “ said property ” in trust for the use of such children, — to apply the proceeds to their maintenance and education, and if insufficient for that purpose, then to sell or mortgage the whole, or any part of “said property,” in such manner as might be necessary; and the appellant agreed that the trustees should convey, assign, transfer and set over to such children, the residue of “ said property,” in equal portions, as they should successively 'attain the age of twenty-five years; and the appellant further consented and agreed, if his wife died, leaving no children capable of taking by inheritance, or in the event of the children dying before attaining the age of twenty-five years, then, in either case, the trustees should hold the property in trust for David J. Ely, or his heirs; and the appellant further consented and agreed, that the trustees should, the contingency happening, convey, assign, transfer and set over the “ said property ” to David J. Ely, or his heirs, or to such persons as he or they should appoint.
In the deed is found this declaration: “ It being the meaning and intent of this indenture to give the said Sarah a life interest in said property, for her own exclusive use and benefit, with remainder to such of her children as survive her; but in case she has no surviving children, then at her death, or, if she leaves surviving children, then 'upon their death, if occurring before the aforesaid age of twenty-five years, the whole of said property, to revert to, and vest absolutely in, the said David J. Ely, his heirs and assigns forever.”
Appellant manifested his individual assent and concurrence in each and all of the trusts and agreements specified in the deed, by placing his name and seal thereto.
We shall discuss only the questions which seem legitimately to belong to the case, and these are, on the admission that appellant, had he not executed the deed, would have been entitled to an estate in expectancy, could he deal with such expectancy in such manner as to bar him from any claim thereto ? That such an interest, though contingent, is a proper subject of contract, is settled by authority. The first case referred to by appellee’s counsel on this point, is that of Hobson v. Trevor, beford Lord Mantsfield, Chancellor, in 1723, reported in 2 Peere Williams, 191. Trevor had encouraged Hobson to address his daughter with a view to marriage, and before the marriage he executed a bond to Hobson, in the penalty of £5,000, and in the condition, the then intended marriage was recited, and that the defendant, Trevor, had agreed, in consideration of the intended marriage, to settle and assure one-third part of all such real estate as should descend or come to him by and upon the decease of his father, Sir John Trevor, the master of the rolls, to the use of the plaintiff, Hobson, for life, remainder to the use of Elizabeth, the defendant’s daughter, for her life, remainder to the heirs of the body of Elizabeth by the plaintiff, Hobson, remainder to the right heirs of the defendant Trevor; after which came these words: How the condition of the obligation is, that if the said marriage shall take effect, and the said Edward Trevor shall, within three months after the death of his said father, settle and assure one-third of all such real estate as shall descend or come to him after his father’s death, then the bond to be void. Sir John Trevor died intestate, by which a large real estate came to the defendant, as the eldest son and heir,of his father.
Hobson and his wife brought their bill for a specific performance of this agreement, and. it was decreed accordingly. In a previous case, Beckley v. Newland, id. 182, the same chancellor on a similar agreement in relation to personal property, made a like decree. In Wether ed v. Wethered, 2 Eng. Ch. 184, it was held that an agreement between two sons, to divide equally whatever property they might receive from their father in his life-time, or become entitled to under his will, or by descent or otherwise from him, was not contrary to public policy, and would be enforced in equity, and reference is made to the case of Beckley v. Newland, supra. So, in the case of Harwood v. Tooke, id. 193, an agreement between two persons having expectations from a third, to divide equally whatever he might leave them, was held a valid agreement.
In Lewis v. Madisons, 1 Munf. (Va.) 303, it was held, that a contract under seal, between two brothers, by which one of them, for a fair and valuable consideration, agreed that when he should obtain possession of a tract of land which he expected his father would devise to him he would convey it to the other, was not against good morals, and would support an action of covenant at law, or be enforced specifically in a court of equity.
In Baylor v. The Commonwealth, 40 Penn.
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Mr. Cheif Justice Breese
delivered the opinion of the Court:
The view we have taken of the case presented by this record, renders it unnecessary to consider the question whether the deed of November 3, 1858, did or did not create a perpetuity by limiting the estate upon a contingency so remote as to . avoid it for that reason. "We have neither the time nor the inclination, as a proper decision of the case does not demand it, to explore that field, or to discuss the abstruse subject of a condition and a conditional limitation of an estate, and the refined and subtle distinctions between them. We place the decision upon the appellant’s agreement, as manifested by that deed, to which he was a willing party, and which, with a full knowledge of all the facts, he executed, and for a valuable consideration.
To what did appellant consent and agree by his executing that deed ? He agreed that his intended wife, the party of the first part, was seized and possessed in her own right of a considerable amount of real and personal property; that a marriage was intended between the party of the first part and the appellant, the party of the second part, and that it was their united wishes that this property, and such other property as she might thereafter become possessed of, by inheritance or otherwise, from any source other than her intended husband, should be settled upon her, for her sole and separate use, for her natural life; that in consideration of this marriage, áppellant agreed that the party of the first part should grant, bargain, sell, assign and set over to Zebulon S. Ely, David J. Ely and George Payson, who were the parties of the third part in the same deed, and to their heirs and assigns forever, all the personal property and effects, together with all the issues, rents and profits and income of her real estate, in possession or expectancy, to her sole use and benefit, her heirs and assigns, until the intended marriage should take place.
He further consented and agreed, that, after the marriage, the personal property and effects, and the rents, profits and income of the real estate, should be held by these trustees in trust, to the sole, separate and exclusive use and benefit of appellant’s wife, free from his debts, control or interference, and to be paid over to her on her separate receipt, and they were required to sell, alien, mortgage or incumber, any or all of the real estate, as she might in writing, under seal, appoint. It was further agreed by and between these several parties, that, in the event of the death of the party of the first part leaving a child or children capable of taking by inheritance, the trustees were to hold “ said property ” in trust for the use of such children, — to apply the proceeds to their maintenance and education, and if insufficient for that purpose, then to sell or mortgage the whole, or any part of “said property,” in such manner as might be necessary; and the appellant agreed that the trustees should convey, assign, transfer and set over to such children, the residue of “ said property,” in equal portions, as they should successively 'attain the age of twenty-five years; and the appellant further consented and agreed, if his wife died, leaving no children capable of taking by inheritance, or in the event of the children dying before attaining the age of twenty-five years, then, in either case, the trustees should hold the property in trust for David J. Ely, or his heirs; and the appellant further consented and agreed, that the trustees should, the contingency happening, convey, assign, transfer and set over the “ said property ” to David J. Ely, or his heirs, or to such persons as he or they should appoint.
In the deed is found this declaration: “ It being the meaning and intent of this indenture to give the said Sarah a life interest in said property, for her own exclusive use and benefit, with remainder to such of her children as survive her; but in case she has no surviving children, then at her death, or, if she leaves surviving children, then 'upon their death, if occurring before the aforesaid age of twenty-five years, the whole of said property, to revert to, and vest absolutely in, the said David J. Ely, his heirs and assigns forever.”
Appellant manifested his individual assent and concurrence in each and all of the trusts and agreements specified in the deed, by placing his name and seal thereto.
We shall discuss only the questions which seem legitimately to belong to the case, and these are, on the admission that appellant, had he not executed the deed, would have been entitled to an estate in expectancy, could he deal with such expectancy in such manner as to bar him from any claim thereto ? That such an interest, though contingent, is a proper subject of contract, is settled by authority. The first case referred to by appellee’s counsel on this point, is that of Hobson v. Trevor, beford Lord Mantsfield, Chancellor, in 1723, reported in 2 Peere Williams, 191. Trevor had encouraged Hobson to address his daughter with a view to marriage, and before the marriage he executed a bond to Hobson, in the penalty of £5,000, and in the condition, the then intended marriage was recited, and that the defendant, Trevor, had agreed, in consideration of the intended marriage, to settle and assure one-third part of all such real estate as should descend or come to him by and upon the decease of his father, Sir John Trevor, the master of the rolls, to the use of the plaintiff, Hobson, for life, remainder to the use of Elizabeth, the defendant’s daughter, for her life, remainder to the heirs of the body of Elizabeth by the plaintiff, Hobson, remainder to the right heirs of the defendant Trevor; after which came these words: How the condition of the obligation is, that if the said marriage shall take effect, and the said Edward Trevor shall, within three months after the death of his said father, settle and assure one-third of all such real estate as shall descend or come to him after his father’s death, then the bond to be void. Sir John Trevor died intestate, by which a large real estate came to the defendant, as the eldest son and heir,of his father.
Hobson and his wife brought their bill for a specific performance of this agreement, and. it was decreed accordingly. In a previous case, Beckley v. Newland, id. 182, the same chancellor on a similar agreement in relation to personal property, made a like decree. In Wether ed v. Wethered, 2 Eng. Ch. 184, it was held that an agreement between two sons, to divide equally whatever property they might receive from their father in his life-time, or become entitled to under his will, or by descent or otherwise from him, was not contrary to public policy, and would be enforced in equity, and reference is made to the case of Beckley v. Newland, supra. So, in the case of Harwood v. Tooke, id. 193, an agreement between two persons having expectations from a third, to divide equally whatever he might leave them, was held a valid agreement.
In Lewis v. Madisons, 1 Munf. (Va.) 303, it was held, that a contract under seal, between two brothers, by which one of them, for a fair and valuable consideration, agreed that when he should obtain possession of a tract of land which he expected his father would devise to him he would convey it to the other, was not against good morals, and would support an action of covenant at law, or be enforced specifically in a court of equity.
In Baylor v. The Commonwealth, 40 Penn. 37, it was said, although a conveyance of an expectancy, as such, is inoperative at law, it may be enforced in equity as an executory agreement to convey, if it be sustained by a sufficient consideration. Page 43.
These cases arose upon executory agreements. In Varick v. Edwards et al., 1 Hoffman’s Ch. 382, which was an executed agreement, it was held, upon these authorities, that the sale of the expectation of an heir is not void in a court of equity, but, if made bona fide, and for a fair consideration, will be supported.
The doctrine is broadly stated in 4 Kent’s Com. 261, that all contingent estates of inheritance coupled with an interest and executory interests, are assignable in equity, and they will be enforced if made for a valuable consideration, where the person to take is certain, and they are transmissible by descent, and are devisable and assignable.
When we look at the deed to which appellant was a party, we are forced to the belief that such a contingency as a complete failure of issue of his intended wife before they attained the specified age, was contemplated by the parties, of the first part, Sarah A. Ely, and the appellant, the party of the second part,*and it was, no doubt, well known and understood, in that event, appellant, as the heir at law to his children, the mother being dead, would, under the laws of this State, inherit the property. This was a contingent interest which, by this deed, made for a valuable consideration, as marriage has been always held to be, appellant voluntarily transferred. He consented and agreed that he would not insist upon his rights should he ever become hem at law; but that David J. Ely, the father of his wife, should have the estate, he being the party from whom it was derived.
Now, if mere executory agreements of this nature will be enforced in equity, we can see no reason why one which is executed should nofbe sustained. It appears in the case, that appellant, after the conveyance by the trustees to David J. Ely, took a lease from him of the premises and furniture, and paid rent therefor, and now asks the.court to set aside the agreement which has been fully executed. "We think no case can be found wherein a court of equity has so disposed of an executed agreement entered into knowingly, for a valuable consideration, and in the absence of fraud. The cases we have cited go to show that equity will enforce, not destroy, such contracts.
It is urged by appellant, that this agreement was invalid, for the reason that a limitation was created not sanctioned by law; that it tended to the creation of a perpetuity, by tying up the estate beyond the period allowed by law, and, being invalid, appellant has lost no rights he possessed when it was executed. His counsel say that appellant was made a party to this deed merely to signify his assent to its execution, .and nothing more can be implied from that act than his consent that the settlement then made should have whatever force and effect the law would give to it. He could give it no greater validity, nor can he in any. way be prejudiced by inoperative provisions inserted in the instrument.
Suppose, for the sake of the argument, that the limitation over to David- J. Ely, was void for remoteness, and that the child, at her mother’s death, acquired, by virtue of Ihe-trust deed, an equitable estate -in fee simple, discharged of the illegal limitation over; doe's it follow from this that appellant could not, for a valuable consideration, consent and agree, that, in that event, and in the event that, he should become the heir at law of his child, he would not take it, but that it should pass to the father, of his wife? Suppose, at the time the marriage was. solemnized, appellant had, by a separate instrument under his hand and seal, for a valuable consideration, entered into the same covenants as appear in the marriage settlement articles, •and the marriage had proceeded on the faith of those covenants, can it be seriously contended the covenantor could, of his own pleasure, nullify them ? Admit the limitation over was contrary to public policy and invalid, was not appellant a party to the transaction, without whose participation it could not have been made ? Shall it be said that he, being i/n pari delicto, may invoke the aid of a court of chancery to upset the agreement, when the same has, in all its parts, been fully executed ? If the parties to this deed of settlement have, violated the law, the appellant was a party to it; if they have entered into mutual engagements, some one of which is not permitted by the law, can one of the parties whose delictum is as great as that of either of the others, and when the agreement has been executed in all its -parts, ask the aid of a court of equity to undo what they have voluntarily done? Ho case can be found where this has been allowed.
The agreement having been made by appellant under all the forms of law, and in the most solemn manner, on the most interesting occasion of his life, that he would never in any event claim this estate, but that it should revert to David J. Ely from whom it wás derived, the "question is made, if this agreement did not operate as a conveyance, did it not operate as an estoppel? To this appellant replies, that, in order to give rise to an estoppel by deed, the instrument must be binding in law.
We have no disposition to controvert this doctrine, if there were no authorities to support it, as it is reason and common sense, but.it is not contended here that the deed alone creates the estoppel. The estoppel arises from acts in pads, and is of an equitable nature. -By the agreement thus executed by the appellant, he obtained for a wife the woman of his choice; he acknowledged Ely as the owner of the estate by leasing the same from him, paying rent for one year and hiring.it for another year, and in all respects by his own voluntary acts, disclaiming all right to, and interest in, the estate. The case shows that, after the trustees had conveyed the estate to Ely, he paid off a heavy incumbrance on it, which, there can be no doubt, he was induced to do, on the faith of the acts, declarations and conduct of the appellant in executing the deed, and his subsequent acts. It cannot avail the appellant now to say, that all that he did was in ignorance of his legal rights; he knew all the facts and has acted upon them, and David J. Ely has pursued a line of conduct in paying off an incumbrance which may justly be claimed as having been indorsed by the conduct of appellant.
Justice, in harmony with equity, demands that his pledged faith shall be kept; that the agreement he made, and which has been executed, shall be upheld; that a family settlement, to which he was a consenting party, should not be broken up on the strength or by reason of any allegation in his bill of complaint, and that the estate shall remain where the parties interested in it most clearly intended. We can see no merits in the claim—no equity in the case, and concur with the Circuit Court in the decision sustaining the demurrer, and in its decree dismissing the bill.
Decree affirmed.