
    Stillman Fitch et al. versus Bush Fitch.
    A covenant by an heir expectant, that he will convey the estate which shaft come to him by descent or otherwise, is valid, if made with the consent of the ancestor, and for a sufficient consideration, and without advantage being taken of the covenantor. •
    This was an action of covenant broken, brought upon a deeo made by the defendant on the 3d of May, 1825.
    In this deed the defendant says, “ I, Bush Fitch, in consideration of 1400 dollars paid me by Stillman Fitch and George Fitch, (the plaintiffs,) my brothers, as well as for the purpose of enabling my father, Ebenezer Fitch, to settle fna estate as far as may be, during his lifetime, among his children and heirs at law, do by these presents, for myself, my heirs, executors, &c. transfer, assign, sell and forever release and quitclaim unto the said Stillman and George, their heirs, &c. all the right, title, interest, claim and demand which I now have or can have hereafter, either by will or descent or otherwise, in or to the estate of my father, either real or personal. To have and to hold to the said Stillman and George, their heirs, &c. to them and their use forever. And I do for myself, &c. covenant with the said Stillman and George, their heirs, &c. that I will not at any time claim, demand or receive any share or portion or part out of my father’s estate, and that 1 will, &c. on demand of the said Stillrrtan and G eorge, &c. and at their expense, execute and deliver to them, &c. all such deeds, power of attorney or other such proper instrument as may be necessary and adapted to enable them to receive the full benefit of this deed according to the true intent and meaning thereof.”
    The declaration sets forth the substance of the deed, and avers that Ebenezer Fitch died in January, 1826, leaving a will and codicils, which were duly proved in May, 1826, by which the testator, after making divers devises and bequests, gave the residue of his estate, real and personal, to his sons, Ebenezer, William, Bush and Achley, and to their heirs, to be equally divided between them ; that this residue included certain tracts of land specified in the declaration, of the value of 4000 dollars; that it was necessary, to enable the plaintiffs to receive the full benefit of the deed, that the defendant should execute and deliver to them a deed of all his interest, right and title in and unto these tracts of land ; and that on March 6, 1827, they demanded of the defendant, that he should execute and deliver to them, and at their expense, a deed of all his interest, right and title in the tracts of land above mentioned, but that he had refused.
    The defendant, after oyer of the deed, pleads that no such demand was made before the action was commenced ; and issue was taken upon that fact.
    At the trial, before Parker C. J., at April term 1828, the plaintiffs offered certain depositions in evidence, to prove a demand ; whereupon the defendant consented to be defaulted, with liberty to move that the default be taken off and that the plaintiffs be nonsuited, in case there was not sufficient evidence in the depositions, of an actual demand, or of a waiver of a demand; otherwise the default was to stand and a hearing in chancery to be had; unless the Court should be of opinion that the contract and covenants on which the action was brought, were sufficient to entitle the plaintiffs to recover.
    The case came before the Court at September term 1828, when it was intimated by the plaintiffs, that the contract was made with the consent of Ebenezer Fitch, the father of the parties ; though this fact was not alleged in the declaration. The Court said, that as one objection against contracts of this kind is, that they are productive of imposition upon the ancestor, the fact stated might be material. Whereupon the plaintiffs, upon leave obtained, amended their declaration by adding .an averment, that the deed was made, executed and delivered with the knowledge and by the consent of Ebenezer Fitch ; and to the declaration so amended the defendant demurred generally.
    
      Merrick, in support of the demurrer.
    No title passed by the deed, the defendant having no estate in the land. A grant of a mere possibility is void. Davis v. Hayden, 9 Mass. R. 514; Bac. Abr. Grant, D 3; Com. Dig. Grant, D, and Assignment, C 3; Shep. Touch. 239; Jones v. Roe, 3 T. R. 93; 2 Mad. Ch. Pr. 549, cites Carleton v. Leighton, 3 Meriv. 667. A title will enure by estoppel, only where public policy or some positive law does not interfere. Somes v. Skinner, 3 Pick. 52; Brinley v. Whiting, 5 Pick. 348. Here public policy does interfere and avoid the deed. The only difference between this case and that of Boynton v. Hubbard, 7 Mass. R. 112, is, that here the father knew of the contract, so that no fraud was practised upon him ; but still the deed is against public policy. Immediately after this bargain was made, the father might have cut the defendant off with a shilling ; so that a way was opened for the commission of fraud. There was no rule for estimating the value of the. property which the father might leave to the defendant ; it was wholly uncertain whether he would die testate or intestate, or whether he might not lose his property before his death; the contract, therefore, was a desperate wager, which the Court will not enforce. Amory v. Gilman, 2 Mass. R. 1. It is believed that no decision of any common law court can be found, in favor of such a contract as the present; and in the two cases in chancery, of Beckley v. Newland, 2 P. Wms. 182, and Hobson v. Trevor, ibid. 192, the reasons are not satisfactory. Heirs are relieved in chancery against such contracts. 1 Madd. Ch. Pr. (Hartford edit.) 117.
    
      
      Sept Sytft
    
      
      March term 1830,
    If the contract is not void, then because it is valid this action cannot be sustained, for according to Somes v. Skinner, 3 Pick. 52, the title is already vested in the plaintiffs. .
    
      Newton, contra,
    
    contended that the deed was not against public policy ; and he referred to 1 Madd. Ch. Pr. (Hartford edit.) 408 409; Musprat v. Gordon, 1 Anstr. 34; Hobson v. Trevor and Beckley v. Newland, before cited; Lloyd v. Johnes, 9 Ves. 52.
   Parker C. J.

drew up the opinion of the Court. As the declaration now stands, as amended, we do not think it bad on demurrer. Though no title passed by the deed made in the lifetime of the father, there being nothing then to grant, yet the covenant to make further assurances may be valid, if made on good consideration, without any oppression or advantage taken of the heir expectant, and with the knowledge and consent of the father. In such case, there is no fraud upon him, no imposition upon the heir who covenants, and no injury to the public ; which are the grounds on which such contracts are set aside in chancery.

Here a full and adequate consideration was paid to the defendant, who was desirous of receiving the value of that portion of his father’s estate, which in the course of law would fall to him. With this, he goes abroad to enter upon business, with a money capital. The father, acquiescing in his wdshes, assents to the purchase made by two other sons, thinking this the best mode of providing for the immediate wants of the son who is to leave the paternal roof and seek his fortune elsewhere. There seems to be nothing against good policy in this ; and it is not opposed by any case that has been cited. On the contrary, it is clearly within the principles of the case of Boynton v. Hubbard, 7 Mass. R. 112; in which this subject was fully and ably considered. We deem the allegation of the knowledge of the father, and his consent to the transaction, essential to the validity of the declaration.

Our judgment is, that the declaration, as amended, is good, and that the defendant may be heard in chancery as to the damages, unless he wishes to contest the consent of the father, or would allege fraud or imposition in obtaining the contract ; in which case he may replead. 
      
       See Somes v. Skinner, 3 Pick. (2d ed.) 598, note.
     
      
       See 1 Story’s Comm, on Equity, 334 et seq , and cases cited in notes.
     