think clearly not; for it could not be carried into effect by them unless they had the power to convey. The covenant then could only operate as between the parties. It would remain an executory contract for ever, except through the act, voluntary, or compulsory, of Mullins. What has already been said on the first and second views in regard to this instrument, may also be applied to this third.

If the right to the lot in question was, at the time the covenant was made, a possibility, assignable in equity only, it could be chargeable only in equity, after the right became an ascertained and vested interest. It has been supposed by some enlightened lawyers, that a covenant of this kind is an absolute nullity at law, and that as the right is not assignable at law, no damages can be recovered for breach of a covenant to convey a possibility, or to assure the title after the possibility ripens into a vested interest. It is supposed that as the assignment of a possibility, which is an executed contract, is good only in equity, law will not lend its aid to enforce a covenant to convey, which being executory, can no more be regarded by law than the executed contract would be; and that there is no other remedy but in equity, and by bill for specific performance. There are authorities which countenance this doctrine, and if this idea be pursued out in principle, the consequence would be that law would wholly refuse to respect any covenant to assign possibilities of either kind, choses in action, and various other things which strictly are not assignable at common law. Ingenuity, no doubt, could produce arguments on both sides of this nice question; but as it is not necessarily before me, I need not discuss it. I admit that a man cannot grant, or charge at law, what he hath not. Hence, if one grant a rent charge out of the Manor of Dale, and afterwards purchases the Manor of Dale, he shall hold it discharged of the rent. Perk. 65. 3 Bac. Abr. 382. Hob. 132. does it not savor of a non sequitur to conclude that a covenant is inoperative when the covenantor had no actual, or even potential right in the res covenanted for? On the foregoing principle, it may be, and has been argued, that although a man may bind himself by a covenant to purchase a certain estate, and convey the same to the covenantee, yet that if he covenants to convey to A any estate which B shall devise to him, or any estate which he shall inherit from B, it is a void covenant at law. On the same ground it might be urged that if

But

one of two joint tenants covenant to assign his jus accrescendi, or, that if he be the survivor, he will convey the entire estate, and land to the covenantee, or, if one of two tenants in common for life, remainder to the survivor in fee, should covenant that if he be the survivor he will convey the whole in fee to the covenantee, I say it may, and has been contended by some, that such covenants are wholly inoperative at law, no damages being recoverable, because the actual assignment of such possibilities are respected only in equity. On this idea was it that, in the case of Jones v. Roe, 3 T. R. 88, Lord Kenyon puts the case of an heir apparent who makes a deed for the conveyance of his right or chance of inheritance. He says that such a disposition is wholly void, although the estate do devolve upon him on the death of his ancestor; not on the ground that such a sale is against public policy, but simply because it is a bare possibility, which is not assignable. And the learned annotator on Fonblanque on Equity, vol. 1 p. 216, remarks upon this case, that 'it may hence be inferred that damages could not be recovered at law for the non-performance of a contract or covenant to convey such an estate, though, if it be for a valuable consideration, it would be decreed in equity.' vide also Hobson v. Trevor, 2 P. Wms. 191; Beckley v. Newland 2 P. Wms. 182.

Without inquiring further into these nice distinctions; and whatever may be the operation of a covenant to convey possibilities, of either kind, or choses in action; and whether an assignment of them can be regarded at law, or in equity only, I would briefly remark that it appears to me to be far from a clear position that because such things are assignable only in equity, therefore a court of law would decline to notice a covenant for their conveyance, especially if the covenant be to convey the interest when it shall arise, or become vested out of what was but a possibility, or a chose in action at the time the covenant was made. Whatever, therefore, may be the operation of John Mullins's covenant with Young and Blake, it is very certain it cannot affect the plaintiffs' right to recover the land in controversy.

FOURTHLY. Does this instrument operate as a GRANT of the land to Young and Blake? Can it convey to them any lots which Mullins might draw in the Land Lottery, with a covenant to confirm the title to Young and Blake, or their assignees? This question involves the consideration of Mullins's

right, prior to the drawing of the lottery, and whether it was assignable at law, or in equity. The inquiry will lead us to some antiquated learning. That this is not a grant is to be inferred, both from the absence of intention to grant any thing to Young and Blake, and also from the incompetency to convey the subject matter, before the drawing the lottery ascertained the thing to be granted, or whether there would be any thing on which the grant could operate.

The instrument professes to convey nothing in præsenti. It does not aim at conveying a present right to a future thing. It merely stipulates, under a penalty of five thousand dollars, that Mullins shall convey at a future period whatever lots may be drawn by him in the lottery; and it appoints Young and Blake his attorneys; thereby excluding all idea of a grant to them; for we have seen that they could not convey to themselves, or to others, after the right became vested; and the right, or chance itself was not designed to be conveyed for any time, whereas the estate, or interest which might arise out of the right, viz. by drawing a lot, was an estate in fee. No intention, therefore, appears to have existed to grant this right or chance, whatsoever was its assignable nature when the instrument was made. The whole then seems to rest in covenant only.

But suppose there was a manifest intention, an express grant, or assignment; could this be legally effected? The right was clearly a possibility, and whether it is to be classed under the head of naked possibilities, or those coupled with an interest, is immaterial, provided all possibilities are assignable in equity only. It becomes necessary, therefore, to examine what kind of possibility it was; and if a possibility coupled with an interest, whether it can be assigned at law, and still further, if it can, then whether the mere assignment of the possibility vests the full estate in the lands in such assignee, without any further act on the part of the assignor, after the lots are drawn; or must the possibility be necessarily clothed with the full legal title, by the mere happening of the contingency?

The nature of possibilities, and the criterions which distinguish the one class from the other, are very unsatisfactorily set forth in the books. But, from such lights as we have, I am disposed to think that this was a mere naked possibility; and that if the instrument be a grant, it was clearly inoperative at law. A mere right, a mere possibility, a possibility coupled

with an interest, a right of entry, a title of entry, a right of action, an interesse termini, a condition, a contingent interest, are all distinguishable from each other; and the distinctions, though often subtile, sometimes lead to very important legal consequences. Thus, for example, there can be no seizin of a right; it can neither be assigned, nor devised; there can be of it neither dower, nor curtesy, nor a possessio fatris. Watkins on Des. 44, 47, 48, 51, 52, 82, 109. Neither can a

10

title of entry, or a right of entry be assigned, and, perhaps, not even devised. Goodright v. Forrester, I Taunton, 578. Nor is there dower or curtesy of such a title, or right, though they be transmissible by descent, and may be released. Coke, 48. So a condition can neither be granted nor devised. Hence a mortgager, before condition broken, can neither alienate nor devise. He may grant or devise his equity of redemption, but he must have it before he can do either; and an equity of redemption only arises after condition broken; before condition broken, it is a pure condition, and not a possibility coupled with an interest, which is devisable at law, though not assignable, and is assignable in equity, (though some say at law also.) Vide 1 Powell on Mortgages, Coventry's edition 268, Note N; 2 Preston's Abstracts of Title, 186. So likewise an interesse termini is assignable at law, and is said to be the only instance of this species of right which is thus alienable. 1 Preston on Estates, 63, 88, 89.

As to possibilities, they have generally been divided into two kinds, viz. naked, and coupled with an interest. And though there are many instances given in the books, illustrative of each species, there has never been any very comprehensible rule or criterion pointed out, by which they may be clearly and certainly distinguished from each other. Mr. Coventry finds fault with the phrase 'possibility coupled with an interest,' and says the phrase, though a common expres-sion, is yet exceptionable, and not, strictly speaking, correct; for if the possibility be accompanied with an interest, it ceases to be a possibility, and is a contingent interest.' Vide Coventry's Powell on Mortgages, 270. He therefore thinks that these two species of right should be called possibility, and contingent interest, the first being what is usually called a naked possibility, (such as an heir's hope or expectation of inheritance-a joint tenant's jus accrescendi-such contingent remainders and executory devises as do not ascertain the person,

as for example an estate to A for life, remainder to the right. heirs of B, or a devise or use to the heirs of B, or an estate to A and B for life, remainder in fee to the survivor) and the second, called by Mr. Coventry contingent interests,' and by others possibilities coupled with an interest,' are exemplified by such contingent remainders, executory devises, shifting and springing uses, as do ascertain the person, be the contingency what it may.

In regard to the assignable quality of possibilities, or similar rights, by whatever name they may be called, a diversity of opinion appears to exist. Some writers seem to think that possibilities of neither class are assignable at law; others say that all are assignable in equity. Again, some contend that naked possibilities are not assignable even in equity, whilst others say that those coupled with an interest are assignable equally at law and in equity, whilst naked possibilities are assignable in equity only.

It is said that all contingent interests, being executory, cannot be assigned at law, because those who claim the rights have no estates. 10 Coke, 50 a. Co. Litt. 264, 6, 265 a, note 212; 1 Ves. 390, 409; 3 Ves. 391; 7 T. R. 589.

Under the idea that whatever is contingent is a possibility, and therefore not assignable, or devisable, it was, at one time, questioned whether a contingent remainder, or an executory devise could, in any case, be assigned, or devised; but when the courts took the distinction between a naked possibility and one coupled with an interest, a contrary doctrine was established, and the latter are now both assignable and devisable.

A right of survivorship and an heir's hope of inheriting are classed with mere naked possibilities; they are mere expectancies, or chances, and are neither assignable, nor devisable. But an executory devise, or a contingent remainder, if the person be ascertained, may be said to be more than a mere chance, expectancy, or possibility; it is a present right, which may, or may not vest an estate or interest in the person; and is, as all admit, assignable in equity, and, some say at law also, and is clearly devisable. They may likewise be released; are transmissible by descent; pass by bargain and sale to the commissioners under the statutes of bankruptcy; may be bound or extinguished by estoppel, (and hence, in this way, sometimes virtually conveyed at law). And though they are