Hall v. Brittain

This action was brought by plaintiffs, seeking the specific performance of a contract for the sale and purchase of five acres of their land, the defendant and appellant Brittain being the purchaser. No question arises as to the fairness of the contract itself, and defendant resisted the action solely upon the ground that plaintiffs could not perform their contract by conveying to him a good and perfect record title. Prom the decree awarding specific performance he appeals, presenting for consideration the single question of the nature and character of respondents’ title.

Herein it is made to appear that W. S. M. Wright, dying testate, made devise of a tract of land known as the Hudspeth tract, five acres of which tract is the land over the title to which this controversy has arisen. By his will he devised

Appellant, against the soundness of respondents’ title, contends that by the decree of distribution the children were treated as a class, with a present right to future possession, a remainder in fee to the living children, subject to enlargement and to the letting in of after-born children; furthermore, that there was a valid future interest or contingent remainder in favor of the surviving grandchildren of Mrs. Hall, whose parents might die before Mrs. Hall, and that none of these interests could be impaired or destroyed by the act of Mrs. Hall in conveying her life estate. Sections 741 and 742 of the Civil Code are here relied upon. But they have no applicability to the facts in this ease. By the terms of the decree Mrs. Hall was not forbidden to make the deed which she did make. Express provision was made in contemplation of the event that she did make such a deed, and that express provision was that her life estate should cease immediately and title to the property should vest absolutely in fee in the children then living. It is the precise act contemplated by section 740 of the Civil Code that “a future interest may be defeated in any manner or by any act or means which the party creating such interest provided for or authorized in the creation thereof.” By the very terms of the decree, whatever future interest or contingent remainder existed in favor of unborn children was immediately destroyed. This conclusion, which we think to be inevitable,

Appellant’s last proposition, however, is that, conceding all else, it must be held that the action in partition by the children of Mahala Hall against Sampson Wright and his children was premature and unauthorized, because while all of Mahala Hall’s children had attained majority, two of Sampson Wright’s children were still minors. But the decree of distribution declares that the land shall not be partitioned until the youngest child of Sampson Wright or Mahala Hall shall have reached its majority. It would appear natural that if this disjunctive language meant an expression of the testator’s wish that no action in partition should be brought by anybody until the youngest child of both his children had attained majority, more apt language would have been employed to express the idea. As it reads, it would seem to imply that the action should not be brought by either the Wright family or the Hall family until the youngest child of the family bringing the action had attained majority. But be this as it may, the court in partition was not deprived of jurisdiction over parties and subject matter by this provision in the decree of distribution. It will be assumed in support of its judgment that it had this decree before it and put its own construction upon it, and whether that construction be right or wrong, it is not subject upon this point in this action to successful collateral attach.

The judgment appealed from is therefore affirmed.

Melvin, J., and Lorigan, J., concurred.