
    Joseph W. Allston and John H. Allston, v. The Bank of the State of South Carolina.
    Settlement on husband and wife, to their joint use during coverture, and to the survivor; and power given to the trustee to sell and invest the proceeds, subject to the same trusts: the trustee sold, and the husband afterwards by deed, assigned his interest in the proceeds, to the trustee, giving him authority to reinvest for the benefit of his wife, in such way as she might direct; and the trustee accordingly reinvested to the sole and separate use of the wife during life, and if she died without leaving issue, then to the husband: — Held, that the husband had the right to change the terms of the trust; and that the rights of creditors must be determined by the interest he took in the property last acquired. [*239]
    A contingent remainder is not subject to the lien of a judgment; but an assignment of it for a valuable consideration will be supported in equity and specifically enforced, as an agreement: therefore where the remainder man against whom there were judgments before the contingency on which he took happened, assigned his interest, it was held, that the lien of the judgments must be subject to the equity of the assignment. [*242]
    John Adamson, the father of Amelia Delesseline, wife of Francis A. Delesseline, by his last will and testament, devised to his said daughter, amongst other things, certain lots in the town of *Camden, in fee >236] simple; and on the 25th July, 1816, after the death of the testator, the said Francis A. Delesseline, and his said wife, joined in a conveyance of the said lots, to Lewis Ciples, but upon what consideration does not appear, nor is it material to the case. On the 11th May, 1811, the said Lewis Ciples, by deed, reciting the conveyance above referred to, in consideration of five dollars, and in pursuance of the intention of the parties to the said deed, conveyed the said lots to Francis Gr. Delesseline, father of the said Francis A. Delesseline, in trust for the joint use and benefit of the said Francis A. Delesseline and his said wife, during their coverture, and from and immediately after the decease of either of them, to the survivor, forever; and authority is thereby given to the said trustee, with the consent of the said Francis A. Delesseline, and his said wife, to sell and dispose of the said premises, and to re-invest the proceeds in such property as they should direct, “ which shall be subject, in the hands of the said Francis Gr. Delesseline, to the same trusts, conditions and limitations, which are declared of and concerning the premises hereby conveyed.” In December, 1821, the trustee, with the consent of the said Francis A. Delesseline, and his. said wife, sold and conveyed the premises to Elizabeth Rogers, in consideration of the sum of $5000.
    Francis G-. Delesseline afterwards, on an application to the Court of Chancery, was permitted to resign his trust, and by an order of the Court, John Gr. Spidle, was substituted in his stead ; and on the 2d July, 1830, the said Francis A. Delesseline, by deed, assigned to the said John Gr. Spidle, the trustee, all his interest in the sum of $4000, part of the proceeds of the sales, to Elizabeth Rogers, then standing to the credit of the said trustee, in- the Planters’ & Mechanics’ Bank, in trust for the sole and separate use of his said wife, without being subject to his debts or disposition, with power to invest the same, and the income or interest arising therefrom, “in such property, and with such limitations, and to such uses,” as his said wife might direct and appoint. In pursuance of this authority, Spidle, the trustee, invested the fund in a house and lot, in Wentworth street, Charleston, and Mr. Milliken, from whom he purchased, conveyed the same to him by deed, bearing date 5th July, 1830, wherein it is declared to be, in trust, for the sole and separate use of the said Amelia, during her natural life, without being subject to *the r^ooh-debts of her husband, and at her death, for her issue, if any; but *- if she died before her husband, without leaving issue, in trust for her husband, the said Francis A. Delesseline, in fee. In 1831, the plaintiffs indorsed a note for $500, for the accommodation of Francis A. Delesseline, which was discounted at the Branch Bank at Georgetown, and in consequence of his insolvency, the payment has devolved on the plaintiffs. To indemnify them against this liability, the said Francis A. Delesseline, on the 20th June, 1832 (his wife then being alive,) by deed assigned, amongst other things, all the right, title and interest, which he then had, or might thereafter have, in the house and lot in Wentworth street, above referred to ; and Amelia Delesseline, the wife, died shortly after, without issue.
    Between the year 1823 and the 21st April, 1828, sundry judgments had been obtained and entered up against Francis A. Delesseline, in Charleston district, and on the day last mentioned, the defendant, the Bank, obtained and entered up judgment against him for $5050 ; and the estate limited over to Francis G. Delesseline, by the deed of Mr. Milliken to John G. Spidle, the trustee, having become vested in the said Francis A. Delesseline, on the death of his wife without issue, executions founded on the judgments before mentioned, were levied on the house and lot in Went-worth street, which was sold on the 5th of November, 1832, and purchased by the Bank for $3200 ; notice of the assignment of Francis A. Delesseline, to the plaintiffs, having been given at the time of the sale. Of this sum, it appears that about $800 were applied to the payment of older judgments, and the remainder to the judgment of the Bank.
    ' The object of the bill is to charge the house and lot in Wentworth street, or the funds arising from the sales thereof in the hands of the Bank, with the note indorsed by the plaintiffs for the said Francis A. Delesseline. The judgments against Delesseline, which have been paid off by the proceeds of the sheriff’s sales, being older than the judgment of the Bank, were necessarily entitled to priority, and the remainder not being sufficient to pay both the Bank judgments and the note indorsed by the plaintiffs, and to secure which Delesseline assigned to themffiis interest in this property, the question is, which of them is entitled to the precedence ? The Chancellor (De Saussure) being with the *defendant r^noo on this question, dismissed the plaintiff’s bill, and this is an appeal L from that decision, on the following grounds :
    1. That the Camden estate being vested in Mrs. E. Rogers prior to the Bank’s judgment, no lien attached thereon; and the Bank has no equitable claim to subject the property in Wentworth street to the same uses.
    2. That the interest of Francis A. Delesseline in the Wentworth street property anterior to the death of his wife, was not subject to the lien of a judgment; and was well mortgaged or assigned to the Allstons, to indemnify them for their responsibility; and the decree should have either directed the notes to be paid, or have ordered a foreclosure for that purpose.
    
      
      Dunkin, for the appellants.
    The sale of the Camden property was before the Bank obtained judgment; no lien, therefore, attached to that. It is true, that the original trust deed required that the proceeds of the property, if sold, should be to the same uses; and that the terms of the trust are changed by the deed of the Wentworth street property. But who has the right to complain ? not the Bank; it had no interest then— no one but Delesseline, the cestui que trust; and there can be no just reason why a party, for whose benefit a trust is created, may not waive or dispose of it.
    Before the death of his wife, Delesseline’s interest in the Wentworth street property was a contingent use, subject to the same rules which govern contingent remainders, and was not the subject of levy. — 4 Kent Com. 293; Prest. 301; Fearne 365-6. Levy can only be made on a certain, vested, and tangible interest, of which the sheriff can put the purchaser in possession ; choses in action, claims purely equitable, and contingent interests, not partaking of this character, are not the subject of levy and sale. — 1 Black. Bep. 30 Doe v. Jones; 4 Com. Dig. 35, Tit. Estate; Harrison u. Maxwell, 2 N. & M’C. 350; Babb v. Akin, 2 M’O. Ch. 125-6; 1 John. Oh. Bep. 52 ; 11 John. Bep. 350 ; 1 Pet. 442; 1 Bail. 231; 8 East. 484. Although the interest of Delesseliue was not subject to the lien of the judgment, it was assignable by him, and the assignment or mortgage will be sustained and enforced in equity as an agreement. Fearne, 550 ; Wright v. Wright, 1 Yes. jr. 409.
    
      * R. B.Smith, contra —
    Contended that the deed for the Went- -* worth street property, varying in its terms the original trust, was fraudulent as against creditors; and that the-interest of Delesseline, being a mere possibility, was not the subject of assignment. Cited 3 T. B. 88 ; 1 H. Black. 30; Eq. Ca. 30; 4 Com. 538; 1 Prest, on Estates, 15 ; 2 Yern. 563. As to the right of levy; 1 Yates, 421; 2 Bin. 80, 89; 8 Mass. Bep. 551.
    
      Dunkin,
    
    in reply: A possibility cannot be assigned at law, but it may pass by way of agreement in equity.
   Johnson, J.

(After making the foregoing statement.) There is no doubt, that under the deed from Lewis Ciples to Francis Gr. Delesseline, of the 11th May,-1811, Francis A. Delesseline had a vested interest in' the Camden property, to the extent of one half for life, with a remainder in fee of the whole upon the death of his wife without issue ; and it seemed to be conceded on the argument, that the lien of the judgments due the Bank would have attached at least on his interest for life: and the power given to the trustee by that deed, to sell and dispose of that property, being limited to a re-investment of the proceeds in other property, to the same trusts and conditions, and limitations” as are expressed in that deed, the Chancellor held, that Francis A. Delesseline had no authority to direct the investments of it to other uses, or upon other conditions and limitations, and therefore directed that the trusts declared in the deed from Mr. Milliken to John G. Spidle, the trustee for the house and lot in Wentworth street should be reformed in such a manner as to correspond with those on the deed from Lewis Ciples to Francis G-. Delesseline ; and the foundation of the Circuit Court decree is, that the deed thus reformed would give to Francis A. Delesseline an interest or estate in the house and lot in Wentworth street, on which the lien of the judgment of the Bank would attach, and that being older than the assignment to the plaintiffs, was entitled to the priority. As before remarked, the interest which Francis A. Delesseline took in the Camden property, under the deed from Lewis Ciples to Francis Gr. Delesseline, was one half for the joint lives of himself and his wife, with a remainder in fee of the whole, upon the contingency of the wife’s dying before him without issue. This, by the sale to Elizabeth Rogers, was converted into money, and as between Francis A. Delesseline, and his wife, and their trustee, I cannot conceive of any possible legal obstruction to his making any disposition* of his interest in it that he might think proper, provided p^o it did not operate to the prejudice of the wife. He was under no L legal disability, nor was there any imposed on him by the deed: indeed I cannot conceive how it is possible for one, by his own act, to put it out of his power to dispose of that which belongs to him. His assignment of this fund to the trustee, Spidle, by the deed of 3d July, 1830, does not deprive the wife of any interest which she took under the deed from Lewis Ciples to Francis Gr. Delesseline; on the contrary, it confers on her the sole power of directing the investment of it, instead of sharing it with him — it gives her the whole, instead of a moiety during life — and, as in the latter deed, limits over the remainder to her in fee, in the event of her surviving him ; there cannot therefore be any question about the power of Francis A. Delesseline to have made this disposition of the funds. If the wife had survived, and this had been a bill to subject the property to the payment of the debts of Francis A. Delesseline, another and a very different question would have arisen; but her claims are now out of the way, and this is a contest between creditors for priority, and having shown that the power of Francis A. Delesseline, over the fund in bank to the extent of his interest, on which there could be no legal lien, was absolute, it follows that the rights of the creditors must be determined by the interest which he had in the house and lot in Wentworth street under the deed from Milliken to Spidle. By referring to the dates, it will be seen that when the judgment of the Bank was obtained on the 21st April, 1828, the fund was in bank, and that it was invested by the trustee in the house and lot in Wentworth street, on the 5th July, 1830— that Francis A. Delesseline assigned his interest in it to the plaintiffs on the 20th June, 1832, and that the remainder became vested in Francis A. Delesseline, on the death of his wife shortly after — and out of this state of things the following questions arise :

1st. Whether Francis A. Delesseline had such an interest in the house and lot, as was subject to the lien of the judgment of the Bank ?

2d. Whether, if he had not, it was bound by the assignment made by him to the plaintiffs, for the payment of the money due them ? By the terms of the deed from Milliken to Spidle, the trusts were limited to the use of Amelia Delesseline, the wife, for life, and at her death to her issue, and on her death without issue, over to Francis A. Delesseline in fee; so that all the interest which he had, was a fee simple dependent on the contingency of his wife dying *without issue, he surviving — an interest or estate falling directly within Mr. Fearne’s definition of a contingent L remainder, as contra-distinguished from a vested remainder — a remainder in an estate so limited, as to depend on an event or condition which may never happen or be performed. — Fearne on Rem. 1. And I feel some difficulty in demonstrating that this is not such an estate or interest as would be subject to the lien of a judgment, the proposition presenting itself to my mind as one which is self-evident. Wherever there is a lien, it follows necessarily, that the thing to which it attaches may be sold in satisfaction of the judgment; it must therefore have a present existence and visible form to enable the sheriff to take possession of, and transfer it to the purchaser, if it is capable of manual delivery. It is for this reason that choses in action are not the subject of levy and sale; they have in themselves no visible form, or tangible existence, and are the mere representatives of something more substantial, and are not within the reach of the sheriff, nor is he capable of transferring them. Hopeless indeed would be the condition of an unfortunate debtor, if not only what he had, but also what he might, by any possibility afterwards acquire, was the subject of execution and sale: purchasers would not readily put a high estimate on such possibilities, and the danger of sacrifices would itself oppose a strong reason for not subjecting them to sale. No case directly in point has been cited, either from the English or American authorities, and it is, I think, a reasonable inference, that it has been regarded as admitting of no doubt; indeed, I did not understand the counsel for the Bank, as relying on the binding efficacy of their judgment, until the life estate of Mrs. Delesseline was terminated by her death. The case of Bozart v. Parry et al., 1 Johnson’s Ch. Rep. 52, bears however some analogy to it. There A. being seized of land, agreed to sell to B., and received a part of the consideration, and undertook to make titles to B., when he should pay the balance. Two years after-wards, the balance still being unpaid, B. assigned A.’s contract to S., and it was held that, although S. might have compelled the specific performance of the contract, yet his interest in the land was a mere equity, and not the subject of levy and sale under an execution against him at the suit of a third person ; and that judgment was affirmed on an appeal to the Court of Errors. But Francis A. Delesseline could not, himself, have trans-*2421 fen’e(^ this remainder by a *common law conveyance of lease and -* release, upon the principle that one cannot grant that which he does not possess. Fearne on Rem. 461, 537. And it follows necessarily, that the sheriff, the agent appointed by law to represent him in making the title to one who purchased under a sale by fieri facias, is incompetent to do so; the judgment could not therefore have had alien, because it would have been inoperative. It seems however to be well settled, that although a contingent remainder is not transferable by the ordinary common law conveyance, yet an assignment of it for a valuable consideration yill be supported in equity as an agreement, which will be specifically enforced. Of this, the case of Wright v. Wright, 1 Ves. 409, cited at the bar, will suffice as an example. There a testator devised lands to his two daughters and their heirs; but that if either of them should marry without the consent of his executors, the daughter so marrying should only have an estate for life therein, and if either of them should die unmarried, to his son, R. in fee, on his paying £500 to the surviving daughter. R., the son, in the lifetime of both the daughters, in consideration of love and affection, granted his interest to his youngest son, G.; — R., the son, first died, and afterwards one of the daughters died unmarried, and upon a bill filed by the eldest son of R. claiming the estate, as heir at law to his father on the payment of the £500 to .the surviving daughter, it was held by Lord Hardwicke, that he was bound by the assignment of the father to the youngest son, G: and he remarks, that the Court admits the contingent interest of a term for years to be disposed of for valuable consideration, though the law does not, and that there was no difference between allowing the assignment of the possibility of a chattel real, and the possibility of an inheritance.

There is nothing novel or extraordinary in the doctrine of this and other cases like it, several of which are collected by Fearne in his Treatise on Executory Devises, p. 439, 522, et seq. All that is necessary to a valid contract is, that it should be made by parties competent to contract, that there should be a good consideration, and that the thing to be done or performed should be lawful and possible; and I cannot perceive why one may not bind himself to do, or perform an act, his power over • which depends on a contingency, if that contingency should happen, as well to do or perform one at a future day, which he is competent to do at the time. If the contingency does happen, the moral obligation is precisely the *same, and it is not opposed by any rule of positive obligation, and equity will enforce its execution precisely to the ■- same extent. I am therefore very clearly of opinion, that Francis A. Delesseline was bound by his assignment to the plaintiffs, and that equity would have enforced that contract against him.

But it has been insisted in the defence, that conceding the assignment of Delesseline to the plaintiffs to be valid, yet, being the assignment of a mere possibility, no lien would attach until the contingency on which it depended took place — that is to say, the death of Mrs. Delesseline without issue — that in the sume instant the lien of the judgment attached, the remainder having become vested in Francis A. Delesseline, and being the oldest, ought to be preferred : and the defence has been made to rest principally on this ground. There is some plausibility in this argument, but it will not bear examination. It has been before shown, that the judgment had no lien on the property until the remainder vested in Francis A. Delesseline. It attached, then, in virtue of the title in him, and that was burdened with the equity arising out of the assignment to the plaintiffs, a claim as meritorious as that of the Bank. Deriving their right from Delesseline, the Bank could not be in a better situation than he would have been. Suppose that in the instant the remainder vested, he had granted it to the Bank with notice of the prior assignment to the plaintiffs, would that have superseded the prior equity of the plaintiffs ? Certainly not. And what magic is there in the lien of a judgment, in itself a mere equity, which gives a higher claim to the property on which it attaches than would a conveyance in fee-simple ?

It is therefore ordered aiid decreed that the decree of the Circuit Court be reversed, and that it be referred to the Master, to ascertain whether any, and what amount remains due on the note endorsed by the plaintiffs for Francis A. Delesseline, and discounted at the Branch Bank in Georgetown ; and whether any, and what amount of principal or interest has been paid by the plaintiffs, on account of the said note; and that the plaintiffs be credited in the books of the said Bank with the amount of the principal and interest, if any, which may remain due and owing thereon, and that the defendants do pay to the plaintiffs the amount, if any, which they may be found to have paid on account of the principal and interest of the said note — costs to be paid by the defendant.  