
    Kelly vs. Morgan’s Lessee.
    
    A vested remainder in land may be levied on and sold by virtue of an execution, founded on a judgment against the remain-derman.
    Ejectment for a house and lot in the town of Knoxville.
    John Fermault in April, 1813, made his last will and testament, and shortly afterwards died. The will contains the following disposition of his property: “I give and allow to my beloved wife, Eve Fermault, all my estate both real and personal, together will all debts owing, and incomes of every description which I may be entitled to at my decease, during her widowhood or life time; and on her intermarriage or decease, I give and bequeath all my estate then remaining, and all that may arise therefrom, or may be exchanged therefor, the same to be equally divided between my two sons, Jacob Fermault and John Fermault.”
    The lessors of the plaintiff, Calvin and Gideon Morgan, obtained a judgment against Jacob Fermault, upon which execution issued, and was levied on his interest in the lot in controversy; and was sold by the sheriff of Knox county to the lessor of the plaintiff.
    The lot was, originally, the property of John Fer-mault, Sen. and was owned by him at the time he made his will, and at the time of Ms death.
    The judgment was obtained against Jacob Fermault after the death of his father; the levy of the execution and the sale of the lot, took place during the widowhood of Eve Fermault.
    After the levy and sale, but before the institution of this suit, Eve Fermault married a certain John Doyle. .
    John Fermault, the younger named in said will, died intestate, during the widowhood of his mother, leaving as bis heirs at law, his brother Jacob Fermault, and a sister who had intermarried with the defendant; defendant was in possession and claimed the whole property.
    The circuit court charged the jury, that Eve had only an estate for life or widowhood in the premises, with a vested remainder after her death or widowhood, to Jacob Fermault and John Fermault; that the interest of Jacob Fermault was rested, and could be sold by execution during the continuance of the particular estate, and that on the intermarriage of Eve Fer-mault with John Doyle, her interest was determined, and the plaintiff was entitled to possession of Jacob Fermault’s interest. This charge was excepted to.
    
      Mr. John Williams and Mr. Jarnegan, for the plaintiff in error.
    The will of John Fermault gave the whole estate to Eve Fermault; that although an estate for life or widowhood was expressly given, yet in the succeeding part of the will, the testator used language, which by implication, gave her the right to dispose of the property or exchange it, and that the balance or remainder of the property undisposed of by her, and remaining at her death or marriage, was to go to his sons. That this was his intention, is evident from the face of the will; he said he bequeathed “all his estate then remaining,” evidently implying, that his wife might dispose or sell all or a part, and if she did not, what remained, &c. to them; and again, he says they are to have “all that may arise therefrom, or may be exchanged therefor;” clearly conferring onherthepower to exchange the property willed for other property, and if the exchanged property remained, &c. then to go to them and their heirs.
    That this being the intention of the testator, it conferred by implication a power on Mrs. F. to sell or dispose of it, and thereby according to settled rules of construction, gave her the absolute interest in the property. They cited Smith T. vs Bell, Martin and Yer-ger’s Re. 302; Jackson vs Robbins, 16 John. Re. 537; Jackson vs Bull, 10 John. Rep. 19; Ido vs Ide, 5 Mass. Rep. 500.
    They further contended, that if the fee simple did not pass to Mrs Fermault, she had an express estate for life, or during her widowhood given, with a power or authority by implication, to dispose of or sell the whole; that it was therefore doubtful, whether the re-mainderman ever would get the property limited by the will; it depended wholly upon the contingency, whether Mrs Fermault would execute the power or not; and inasmuch as this was an uncertain event, their interest was not a vested but a,contingent remainder, and that a contingent remainder could not be sold at execution sale, before the happening of the contingency; that the sale was merely void and passed no interest whatever; that the party was not estopped by sheriff’s deed, &c.
    
      T. L. Williams, contra,
    argued, that an express life estate, or an estate during widowhood, was only given to Mrs F. by the will, and admitting she had a power of alienation during widowhood or life, it did not convert her life estate into a fee simple; that the power was distinct from the interest, if it existed at all in this case, and that if the power was not executed during her widowhood, the property vested in the re-mainderman. He contended, that the cases cited, so far from establishing the position contended for by the counsel for the plaintiff in error, settled the law directlj the contrary. In all the cases cited, an estate was given generally, or with words annexed, which created a fee, together with a power of disposition; in these cases, it was held the fee passed; but the cases all admitted, if the interest given was expressly restrained to life, with a power to dispose of the reversion, that no greater interest passed than that which was given in express words.
    But he insisted, that no such power was given expressly or by implication, to Mrs F.; and if it was, she had married without exercising or executing it, and that the estate to the remainderman was now absolute and beyond her control; that it made no difference, whether the power existed in Mrs F. at the time of the execution sale, because it was a vested remainder in the sons, and not contingent, as was contended; that a vested remainder could be sold at execution sale: he cited 14 Mass. Rep. 20: 2 'Dallas, 223: 2 Nott and M’Cord, 347: 4 Com. Dig. Executor.
   Catron, Ch. J.

delivered the opinion of the court.

The first question presented by the record is, whether Jacob Fermault took a vested remainder in the estate in controversy. He was, at the death of John Fermault, a person in being, who would have an immediate right of possession of the lands, upon the death or marriage of his mother, who by the words and plain intention of the testator, took only an estate for life or widowhood.

2. Was such title in remainder, subject to be seized and sold by virtue of a fieri facias against the property of Jacob Fermault, during the life time, and before the marriage of his mother, and when he neither had the possession or the right of possession?

Whether a vested remainder could be extended in England by the writ of elegit, it is not very material to inquire; forasmuch as the extent only communicated to the creditor a right to a moiety of the rents and profits arising, for a time sufficient to pay the debt, a mere chattel interest was taken, in its nature valuable; and there were many reasons why possession should accompany the extent, yet a reversion could be extended, and the plaintiff have a moiety of the rents arising to the lessor. 2 Sanders 69, note to Underhill vs Devereux.

This cause depends upon the construction of our statutes, subjecting lands and tenements to sale, divesting the legal title of the debtor and vesting it in the purchaser. It never has been supposed, that the defendant in the execution, must be in possession of the land to authorize a levy and sale. The judgment binds the land, although adversely holden by a third person; in which case it may be sold, and the purchaser recover in ejectment. Champerty act of 1821, ch. 66, sec. 1.

The descriptive term of the estate, subject to levy and sale by the act of 1794, ch. 1, sec. 23, is “lands and tenements,” and which, it is believed, has by the concurrent opinion of the courts and country, been construed to embrace such a legal estate as might be recovered by action of ejectment, not merely at the time the purchase was made, but after an existing interest and right of possession in another had expired: for instance, A leased to B for one or more years; after C recovered judgment against A; it never has been questioned but that the estate in reversion could be sold, subject to the incumbrance of the term for years.

No distinction can be seen between a reversion and a vested remainder; both the remainderman and the re-versioner, have a present, vested legal interest, covered by the description, “lands and tenements,” out of which the creditor is entitled to satisfaction, either at law or in equity; and there being jao embarrassment to. the remedy at law, no reason can be perceived why it should not be resorted to.

The same has been holden in Massachusetts in the construction of their statute, differing, however, from ours in its language, by using the words “real estates,” instead of “lands and tenements;” yet the reasoning employed well applies to the description given by our legislature.

Judgment affirmed.

Green, J. doubted on" the last point.  