#### Ezekiel Pickens and others *vs.*Thomas Jones Pickens and others.

*Prison Pounds Act*— Assignee *of contingent interest, for benefit of creditors, has no implied power to sell.*

An assignee for payment of debts, of a contingent interest in lands or chattels, whether the assignment be under the Prison Bounds Act or be voluntary, has no power, implied by law, to sell such interest, but must wait until the interest becomes vested, before he can proceed to realize funds from the assigned interest to pay the debts.

BEFORE DUNKIN, CH., AT ANDERSON, JUNE, 1860.

Andrew Calhoun Pickens, one of the defendants, was entitled to certain contingent interests in lands and slaves under the will of his father, the contingency being that he should survive his mother, who had a life-estate in the same lands and slaves. In 1855, during the life of his mother, he was arrested under a *ca.*sa., at the suit of John B. Sitton, and on the 10th March, 1855, he filed a schedule of his property and effects, including therein the contingent interests aforesaid. On the same day he executed an assignment, as follows :

“I hereby assign and convey the estate and effects in the annexed schedule, or so much thereof as shall be sufficient to satisfy the debt, interests, and costs of the said cause, to John B. Sitton, the plaintiff, at whose suit I am confined, subject, nevertheless, to all prior encumbrances; the over-plus of the said estates and effects I hereby assign and convey to my friend, Augustus T. Broyles, in trust, nevertheless, first, for the payment of all necessary fees and expenses incurred, or to be incurred, in carrying out this assignment ; secondly, to collect and pay over to my schedule *112creditors mentioned in a schedule marked A, and herewith annexed, *pro rata,*according to their several amounts.”

The assignees advertised the assigned estate for sale at public outcry on Thursday, the 22d November, 1855, and on‘that day the contingent interests were put up for sale, and bid off by John E. Bellote, at the price of $825, to whom the assignees by deed conveyed the same. On the 20th August, 1856, John E. Bellote, by deed, conveyed the said contingent interests to the defendants, James W. Har* rison and John B. Sitton. There was no charge or pretence that there was any fraud or unfairness in any of the transactions, and the only question made on this part of the case was, whether the assignees, Broyles and Sitton, had power to sell the said contingent interests.

Mrs. Elizabeth Pickens, the tenant for life, died in December, '1859, and thereupon the interests of Andrew Calhoun Pickens became vested.

Other questions were made in the cause, but the one above mentioned is the only one that was taken to, discussed, and considered, in the Court of Appeals.

The decree of his Honor, the Circuit Chancellor, is as follows:

Dunkin, Ch. The will of Ezekiel Pickens, of St. Thomas’ parish, was executed in the spring of 1818, and was admitted to probate in the fall of that year. To his wife, Elizabeth Pickens, the testator bequeathed the use of one-third of his personal estate during the term of her natural life. From and immediately after her decease, it is directed that the said third part of his personal estate, together with the increase of the slaves, “shall revert and be again considered as part of my estate, and be equally divided, share and share alike, between my children hereinafter mentioned, or the survivor, or survivors of them, or their respective issue lawfully begotten, in manner and form as *113the remaining part of my personal estate is hereinafter directed to be divided.”

The remaining two-thirds of his personal estate the testator directs to be equally divided, share and share alike, between his three children, (by name, of his first marriage,) and his three children, (by name, of his second marriage,) the sons to be entitled to receive their shares as they respectively attain twenty-one years, and the daughters on attaining twenty-one years, or marriage after attaining eighteen years of age. In the event of the death of either son or daughter, “ before attaining the respective ages above mentioned,” provision is made for the division of the share among the surviving children of the first and second marriages in the manner therein prescribed.

The testator further devised to his wife, during life or widowhood, one-third part of his real estate that might remain after payment of his debts; and, in the event of the marriage or death of his wife, it is directed that the said one-third part “shall revert and be again considered as part of my real estate, and shall be equally divided, share and share alike, between my children herein before mentioned, or the survivor or survivors of them, or their respective issue lawfully begotten, in manner and form as the two-thirds of my personal estate has been already, particularly-directed to be divided to them respectively, their heirs and assigns.”

Mrs. Elizabeth Pickens survived her husband, the testator, some forty-six years, and died his widow in December, 1859. The object of these proceedings is the sale and distribution of two tracts of land and some sixteen slaves, held by the life-tenant under the foregoing provisions of the testator’s will.

At the death of Elizabeth Pickens, four of testator’s six children were alive, and were parties in this cause. Elizabeth Bonneau Pickens, a daughter of the testator, and the *114wife of Ms late Excellency, Patrick Noble, departed this life in 1834, leaving issue, who are among tbe plaintiffs. Samuel Bonneau Pickens, a son of tbe testator, died in 1852, without issue. His widow and administratrix, Martha J. Pick-ens, is also a plaintiff.

Some administrative orders were passed by consent at the hearing of the cause, but it becomes necessary to give construction to the clauses of the testator’s, will which have been recited.

Mr. Jarman, citing the judgment of Sir John Leach, in *Crapps*vs. *Wolcott,*4 Madd. 11, declares it “to be now settled that if a legacy be given to two or more, equally to be divided between them, or to the survivor or survivors of them, and there be no special intent to be found in the will, the *sur-vivorship is to be referred to the period of division.*If there be no previous intent given in the legacy, then the period of division is the death of the testator, and the survivor at his death will take the whole legacy. But if a previous life-estate be given, then the period of division is the death of the tenant for life, and the survivors, at such death, will take the whole legacy.” 2 Jarm. 648.

The principle was considered and fully recognized in *Evans*vs. *Q-odbold,*6 Bich. Eq. 26. “ Persons claiming the estate of the testator (say the Court) must bring themselves within the description of heirs of the testator, surviving the widow.” Until the death of the widow, it could not be ascertained which of the testator’s children would be able to bring themselves within the description, and the right of each child was, therefore, contingent until that event occurred. Mrs. Noble1 and her brother, Samuel Bonneau Pickens, having died before the widow, their contingent interest ceased, as they could never be brought within the description of those who would be entitled to take — those children not falling within the description are excluded. Mrs. Noble and her brother, Samuel Bonneau, come within *115'the latter category. Although Mrs. Noble’s death terminated her contingent interest, her issue are protected, not as claiming through her, but as direct purchasers under the testator’s will — the legacy is to the children, or the survivor or survivors of them, “or their respective issue lawfully begotten.” The language of the bequest in *Smoot*vs. *Anderson,*Sp. Eq. 312, is very similar. It was there held that this provision was intended for such of the children as might survive the tenant for life, and for the issue of those who might not have survived. The issue of Mrs. Noble take the share intended for their parent, and the adminis-tratrix of Samuel Bonneau Pickens is excluded.

Then as to the purchase of the interest of Andrew Calhoun Pickens. The Court is unable to distinguish this case in principle from that of *Bently*vs. *Long,*1 Strob. Eq. 53. Judge Johnson there held that the situation of the as-signee under the Prison Bounds Act was in some sort fiduciary. “ The interest which the defendant, Benjamin Long, had in the estate was (says the Judge) a chose in action, and the effect of his assignment to complainant Bently was to constitute him his agent, to reduce it into possession, and to pay himself out of it the amount due him in the judgment, and no more. It did not invest him with the unqualified right of property, but invested him with a power which he had no authority to assign to another, and, if a stranger had purchased at the sale, he could, under no circumstances, have been in a better condition than Bently himself.” The complainant Bently appealed upon the-ground, (among others,) that he had acquired a good title to the interest of defendant Long, in the estate of his father, by virtue of his assignment under the *ea. sa.*to him, the complainant, and by his (Bently’s) purchase of said interest for a full and valuable consideration, under a fair sale and competition. This part of the decree was sustained by *116the Court, and the complainant only allowed to be subro-gated to the rights of creditors whose liens he had discharged.

The principle seems more emphatically applicable to a voluntary assignee, as the pleadings indicate A. T. Broyles. Such an assignment of a chose in action authorizes the assignee to collect and receive it, and apply the same to the purposes of his trust. It does not, in the language of the Court, “invest him with the unqualified right of property, but invested him with a power which he had no authority to assign to another.” A purchaser, from him stands in the same relation with himself, and the chose, in his hands, is liable .to the same condition. To wind up a bankrupt concern, the Court has, in some rare instances, ordered choses in action to be exposed to sale; but the province and the duty of an assignee for the benefit of creditors is to collect the choses in action, and unless specifically authorized, he cannot discharge himself of his trust by putting them up at auction.

It is presumed that the sum paid by the defendants in .November, 1855, was applied to the debts of A. C. Pickens, and they could (very properly) claim that this sum, with interest, should be deducted from his share, and it is so ordered and decreed.

It is necessary that Augustus T. Broyles should be made a party for the purpose of having an account both from himself and John B. Sitton, the assignee under the Prison Bounds Act. Until A. T. Broyles has had the opportunity of answering, it would be premature to make any final order as to the disposition of the share of Andrew Calhoun Pickens.

Parties may be at liberty to apply at the foot of the decree for such further and other order or orders as may be necessary.

*117The defendants, Harrison and Sitton, appealed, on the grounds:

1. It is respectfully submitted that the only question raised for the decision of the Chancellor was the construction of the will of Ezekiel Pickens. The effect of the assignment made by Andrew C. Pickens of his interest in his father’s (Ezekiel Pickens’) estate was expressly reserved by complainants’ and defendants’ solicitors at the hearing, and was not argued.

2. It is respectfully submitted that the assignment made by Andrew C. Pickens to John B. Sitton and Augustus T. Broyles was voluntary, and the assignee conveyed his entire estate to the assignees, and authorized' them to sell to execute the trusts in the deed of assignment.

3. It is submitted that Harrison and Sitton are the *bona fide*owners of the interest of A. C. Pickens in his father’s estate, and the decree of the Chancellor should have ordered the same to be paid to them, instead of subrogating them to the rights of creditors,

*4z.*Because Andrew C. Pickens is estopped from denying the rights of defendants, Harrison and Sitton, as his deed was voluntary, and no allegation is made of fraud or bad faith either against the assignees or the purchasers.

Harrison, for appellants.

*Noble,*contra.

The opinion of the Court was delivered by

Inglis, A. J.

The plaintiff's having abandoned their appeal touching the nature of the interests which the children of Ezekiel Pickens took, under his will, in the property, real and personal, therein devised and bequeathed to his *118widow for life, the only question upon which the judgment of this Court is now required is that made by certain of the defendants respecting the power of the assignee of A. C. Pickens, under an assignment made while his interest was yet contingent, to dispose of that interest.

The Prison Bounds Act, (5 Stat. 78,) while exacting of the debtor, who seeks the benefit of enlargement which it proffers, an assignment of his whole estate if necessary, or otherwise of so much as will be sufficient to pay and satisfy the debt for which he is confined, does not in terms ascertain or define the estate, interest, or power, which the assignee, by virtue of such assignment, takes in or over the property and effects therein assigned. In this respect it is distinguished from the Insolvent Debtors Act of 1759, (4 Stat. 86.) Inasmuch, however, as the object of the assignment is the payment and satisfaction of the debt, such effect must be given to it as will, so far as from the nature of the property and interests assigned may be, accomplish this object. There is no absolute transfer of the debtor’s property to the assignee for his own proper use, for that would overreach its purpose wherever the property proved to be more than sufficient to pay and satisfy the debt. But there must be a power to enter upon, possess, and sell, to collect, or reduce into possession, according to the nature of the property, for this is necessary in order to payment and satisfaction. But no more is necessary, and therefore no more can be implied. Whatever of the property assigned has *“*present existence and visible form” may be sold, for it is in law capable of sale, and that is the only proper mode of applying it in payment and satisfaction. *Ohoses in action,*such as bonds and other securities, may be collected, for that is the method appropriate to their nature of making them available. Contingent interests may be reduced into possession when the contingency is determined, and if the interest then attaches upon any thing having *119"present existence and visible form,” so as to vest this in tbe debtor, doubtless tbe assignee, if payment and satisfaction has not been previously otherwise made, may, with the aid of equity, convert it by sale into the means of such payment and satisfaction. “A contingent remainder is included in the description, 'estate, property, and effects,’ mentioned in the Act of 1788, (5 Stat. 78,) and an omission to include it in the schedule is within the penalties of the Act,” *(Clerry*vs. *Spears,*2 Sp. 687.) A debtor under arrest, and desiring the enlargement offered him by this Act, is therefore compelled to assign any such contingent interest that he may be entitled to. But the effect of his assignment thereof is not to vest any property m the assignee, for the debtor has no property capable of transfer. What he has is a possibility of property at some future time, arising, it may be, by gift or grant, but too remote and uncertain to be the subject of sale and conveyance. Such assignment operates, not as a grant, but as a contract or agreement to convey, and gives to the assignee a right of action only — that is, a right to compel specific performance by the assignor as soon as, by the determination of the contingency and the vesting of the estate, the assignor has acquired the power to perform it. The assignee has then a mere equitable chose in action. Such a chose in action is not the subject of sale; it is not-a marketable commodity. A power to sell in the market such a mere right, and by so doing to convey away the whole interest which the debtor may ultimately be entitled to in possession, without reference to the sufficiency of the proceeds of that interest, when actually reduced into possession, to fulfil the purposes of the assignment, cannot be implied from the fact of assignment. Nothing can be implied beyond the legal incidents, because more is not necessary in order to effectuate the purposes of the assignment. The assignee does not, by virtue of an assignment such as is now under consider*120ation, take a power to sell in the market a bond or other security assigned, although the delay in its collection, resulting from the long postponement of its maturity by the terms, may be a grievance. He has pursued his debtor to the last extremity, and has got all he now has to give him; the limit of legal remedies for the present has been reached, and he may convert what he has got into the means of satisfaction in those legitimate modes severally appropriate to each kind of *“*estate, property, and effects.” Under the Insolvent Debtors Act, upon the discharge of the debtor, all future remedy of the suing creditors is gone, and it is therefore their interest to make the property assigned yield for satisfaction its utmost value. Hence the large powers therein given cannot result in any injury to the debtor. But under the Prison Bounds Act, if the property assigned prove insufficient, the creditor may subject to the purpose of satisfaction any after-acquired property of his debtor. It will often be to his advantage to convert the property and interests assigned without delay, though at a sacrifice, and, secure of so much as these will yield, hold his judgment ready to fasten its lien on the future acquisitions, taking his chance for such further fruit as he may thus be able to gather. The only protection of the debtor is in the limited power of the assignee under this Act to dispose of all those kinds of interests most liable to a sacrifice. If he departs from the legitimate modes of the application of such interests to the satisfaction of his debt, and, in his eagerness for immediate realization, auctions in the market a mere contingency to which capability of sale is not a legal incident, when he calls upon the debtor through the Court to make his conveyance effectual by a specific performance of his agreement involved in the assignment, the debtor may justly reply, *"Non in haec jcadera veni”*— “I am ready to perform specifically my agreement, but only for the purposes for which that agree*121ment was maple, to wit, that the estate now vested in possession may be applied, according to the intention of the assignment, to the payment and satisfaction of my debt.” Such application of the full value of the property which, upon the determination of the contingency, is the fruit of the expectancy assigned, was the consideration of the assignment, and the assignor may well insist upon that consideration being assured to him before he is required to convey. If the right derived under the assignment be capable of transfer at all, the transferee must take it subject to the equities of the assignor growing out of the original transaction, and through whatever number of successive *mesne*transfers it may pass, the final holder can be in no better condition than was the original assignee.

The wisdom of the law in discountenancing the sale of interests so remote and uncertain in their character is well illustrated in this case. A. C. Pickens had a contingent interest in remainder in two distinct gifts, the one a devise of realty, the other a bequest of personalty. At the time of the attempted sale, Samuel B. Pickens, one of his co-remaindermen under the will, was already dead, and the share of A. 0. Pickens, in case of his survivorship, was therefore at least one-fifth of the whole. Yet the interest in the two gifts was sold in a mass, and that interest described as one-sixth only.

A debtor who has made an assignment of this kind, where no power of present conversion by sale is expressly given by himself, or made incident by law, is entitled to the benefit of the full value of the interest when it shall be reduced into possession, whether the result be for his relief from the obligation of debts, or his own enjoyment of the surplus.

This Court concurs, therefore, with the Chancellor on this point, and the motion to reform the decree is refused, and the appeal dismissed.

Dunkin, C. J., concurred.

*122Wardlaw, A. J.

I agree, except that as the contingency might have been wholly defeated by the death of A. 0. Pickens before his mother, the chance of obtaining certainly something for the creditors seems to me to have required a power of sale.

*Appeal dismissed.*