true of the interest of the owner of a Spanish grant, after its presentation to the commissioners. The patent, when issued, relates back to the presentation of the petition for confirmation.70 We think this general rule must prevail in every instance in which the defendant in execution has acquired an interest in the property which the law does not forbid him to voluntarily transfer. The conveyance made by an officer acting under execution is equivalent to the quitclaim deed of the defendant, and when that can convey an interest in the land, the sheriff's deed must be equally efficient." But in Georgia, a grant from the state which did not become perfect until certain fees were paid was held not to be subject to execution.72 A like decision was made in Indiana, in reference to school lands purchased from the state, and which the state had agreed to convey on payment of the residue of the purchase price. These decisions seem to us to be without any support in reason. Of course, it must be within the power of a state, in providing for the sale of its lands, to restrict the right of the purchaser, before acquir ing a complete title, to alienate his interests, whether by a voluntary or involuntary transfer, and this restriction may be implied as well as expressed. The mere fact that he is under obligation to pay the resi due of the purchase price, or to comply with some other condition, pecuniary or otherwise, does not seem Miss. 453, 69 Am. Dec. 358; Lindsey v. Henderson, 27 Miss. 502; Jackson v. Williams, 10 Ohio, 69; Heffly v. Hall, 5 Humph. 581; Lee v. Crossna, 6 Humph. 281. 70 Landes v. Perkins, 12 Mo. 254; Landes v. Brant, 10 How. 348; Stark v. Barrett, 15 Cal. 361; Walbridge v. Ellsworth, 44 Cal. 354. 71 Kingman v. Holthaus, 59 Fed. Rep. 305. 72 Garlick v. Robinson, 12 Ga. 340. to us to imply that his estate or interest shall not be deemed subject to execution, if, by the laws of the state, equitable interests in real property are so subject.73 Section 2296 of the Revised Statutes of the United States declares that no lands acquired under the provisions of the chapter relating to homesteads shall in any event become liable to the satisfaction of any debt contracted prior to the issuing of a patent therefor. Under this section it has been admitted, as to debts contracted before the final proof was made and the claimant became entitled to a patent, that the homestead could not be taken under any execution issued on a judgment therefor.74 After such proofs have been made, and the claimant has nothing further to do except to wait for, and to receive, his patent, it has been insisted that, as he is entitled to a patent, and it, when issued, relates to, and becomes operative, as of a prior date when his right thereto became vested and perfect, the lands were subject to execution for debts contracted after such time, though before the actual issuing of the patent.75 This construction of the statute does not give the words employed therein their natural signification. The question has not, so far as we are aware, been decided by the national courts, but a majority of the state courts to which it has been presented have held that lands acquired under the homestead laws of the United States are not subject to execution for any debt contracted prior to the actual issuing of 78 Wilson v. Deweese, 114 N. C. 653; McWilliams v. Withington, 7 Fed. Rep. 326. 74 Post, § 250; Shorman v. Eakin, 47 Ark. 351; Baldwin v. 18 Neb. 444. Boyd, 75 Struby-Estabrook M. Co. v. Davis, 18 Colo. 93, 36 Am. St. Rep. the patent, irrespective of the time when the claimant § 177. Copyhold Estates," and all Other Tenancies § 178. Remainders and Reversions. A vested 76 Bernard v. Boller, 105 Cal. 214; Faull v. Cooke, 19 Or. 455, 20 77 Watson on Sheriffs, 208. 78 Wildy v. Bonney, 26 Miss. 35; Waggoner v. Speck, 3 Ohio, 292; 79 Wiley v. Bridgman, 1 Head, 68; Humphreys v. Humphreys, 1 80 Wilkinson v. Chew, 54 Ga. 602; Atwater v. Manchester S. B., present possession is regarded as the possession of the reversioner or remainderman. Hence, an estate in remainder or reversion may be transferred by voluntary conveyance, or by extent under elegit, or by sale under execution. If lands be devised to A for life, "and at her death to be equally divided between her children," each of her children takes a vested remainder in the land, which, during the life of the mother, is subject to execution, because the words of the devise show an intent that each of the children shall enjoy a several interest.81 But, if the devise had been made to a fluctuating class of persons, so that it would have been uncertain whether the judgment debtor would be a member of the class at the termination of the life estate, the question would be more difficult and doubtful.82 "A contingent remainder, conditional limitation, or executory devise, where the person is certain, is transmissible by descent. But such interests are not assignable at law, for the reason that in every conveyance there must be a grantor, a grantee, and a thing granted--that is, an estate, and such contingent interests do not amount to an estate, but are mere 'possibilities coupled with an interest.' It is held in the old cases that such contingent interests cannot be devised, as a devise is a species of conveyance, but by the latter cases they have been held to be devisable upon a wording of the statute of devises, a devise being in effect a mere substitution of some person to take in place of the heir. Such contingent interests not being assignable at law, it follows, as a matter of course, 81 Davis v. Goforth, 1 Lea, 31. 82 Watson v. Dodd, 68 N. C. 530; Penn v. Spencer, 17 Gratt, 85, 91 Am. Dec. 375; Payn v. Beal, 4 Denio, 405; Jackson v. Middleton, 52 Barb. 9. that they cannot be sold under execution." 83 A testator devised lands to his widow for her own use during her natural life, and, at her death, to be equally divided among his surviving children. It was held that the interest vested in each of his children was a contingent remainder, that it was not until the death of the mother that it could be known which of the children, if any, would become entitled to share in the estate, and hence, that, prior to such death, the interest of each was not subject to levy and sale under execution.4 A like conclusion was reached in Virginia in a similar case, though the statute of the state purported to authorize the attachment of any estate or debt of the defendant in execution.85 While, if a voluntary assignment of an interest of this character were made, there being no fraud or imposition, a court of equity would, if the estate afterward vested in the assignor, compel him to make title, or else hold the estate as security for the consideration paid, 86 such court will not, in a creditors' suit, compel a transfer of such interest. "It is clear that such a possibility would sell for little or nothing, as no one would buy except the holder of the first estate, for the purpose of extinguishing the limitation. The party may, if he choose, enter into such an executory agreement to convey, provided the estate vests, and there is no principle upon which a court of equity can compel him to make an agree ment." " 87 83 Scott v. Scholey, 8 East, 467. 84 Roundtree v. Roundtree, 26 S. C. 450; Hayward v. Peavy, 128 Ill. 431, 15 Am. St. Rep. 120; Thomson v. Ludington, 104 Mass. 193. 85 Young v. Young, 89 Va. 675. 86 Note to McCall v. Hampton, 98 Ky. 166, 56 Am. St. Rep. 339 87 Watson v. Dodd, 68 N. C. 528. |