That a grant by an expectant is simply a covenant to convey ; 1 P. Wms. 387 (Lord Chancellor Hardwicke); McDonald v. Mc Donald, 58 N. C. 211, 75 Am. Dee. 434 ; and that chancery will give effect to the assign ment of an expectancy or possibility, not as a grant, but as a contract entitling the as signee to a specific performance as soon as the assignor has the power to perform it ; are held too well established to be disregard ed; McDonald v. McDonald, 58 N. C. 211, 75 Am. Dec. 434 ; Philadelphia, W. & B. R. Co. v. Woelpper, 64 Pa. 366, 3 Am. Rep. 596. Such a sale may be enforced as against the heir through the, doctrine of estoppel spring ing from his covenants contained in the deed of assignment ; Johnson V. Johnson, 170 Mo. 34, 70 S. W. 241, 59 L. R. A. 748, citing Steele v. Frierson, 85 Tenn. 430, 3 S. W. 649; Bohan v. Bohon, 78 Ky. 408 ; Somes v. Skinner, 3 Pick. (Mass.) 52; Robertson v. Wilson, 38 N. H. 48; House v. McCormick, 57 N. Y. 310 ; Habig v. Dodge, 127 Ind. 31, 25 N. E. 182; followed and approved; Jer auld v. Dodge, 127 Ind. 600, 25 N. E.. 186; Fairbanks v. Williamson, 7 Greenl. (Me.) 96; Stover v. Eycleshimer, 46 Barb. (N. Y.) 84 ; Rosenthal v. Mayhugh, 33 Ohio St. 155.
The general doctrine is undoubtedly to treat such an assignment as a contract en forcible in equity, but Pomeroy considers it inadequate ; 3 Porn. Eq. Jur. § 1287, n. 2; and prefers the theory that it is an actual transfer of the ownership of an equitable property right which ripens into an abso lute title ; id. § 1271.
Equity will, in general, relieve a party from unequal contracts for the sale or pledge of expectancies, as they are in fraud of the ancestor. See 2 P. Wms. 182; 2 Sim. 183, 192; 5 id. 524 ; 1 Sto. Eq. Jur. § 342. But relief will be granted only on equitable terms ; for he who seeks equity must do equity ; id.
In dealing with such cases, the rule ap plied by courts of equity is, as laid down in Chesterfield v. Janssen, to scrutinize them carefully according' to the circumstances of each; 2 Ves. Sr. 125 ; and, if upon inade quate consideration, or otherwise fraudulent, they will be relieved against and wholly or partially set aside; id.; 1 L. Cas. in Eq. 773 ; 2 Porn. Eq. Jur. § 953, and note, where the cases are collected.
In a leading English case the principle is thus stated "The court will relieve 'ex pectant heirs' against bargains relating to their reversionary or expectant interest in cases of undervalue, of weakness due to age or poverty, and of the absence of independ ent advice. But all these circumstances must co-exist in order to entitle them to re lief ;" L. R. 8 Ch. 484. In that ease it was held that the repeal of the usury laws in England has not altered the doctrine by which the court of chancery affords relief against improvident and extravagant bar gains. In the opinion Lord Selborne directed
attention to the fact that concealment was usually a feature of these eases, but agreed with Lord St. Leonards that it was not an indispensable condition of equitable relief ; Sugd. Vend. & Pur., 11th ed. 316 ; differing, as to this point, with Lord Brougham ; 2 Myl. & K. 456. The independent advice of a father seems to rebut the presumption of fraud; 2 App. Cas. 814 ; but old age or youth increases it; 2 Giff. 157; 4 D. J. & S. 388; or poverty and ignorance; L. R. 10 Ch. 389; 40 Ch. D. 312. In the first of these two cases, Jessel, M. R., thus defined the term "expectant heir" : "The phrase is used not in its literal meaning, but as including every one who has either a vested remainder, or a contingent remainder in a family property, including a remainder in a portion, as well as a remainder in an estate, and every one who has the hope of succession to the prop erty of an ancestor, either by reason of his being the heir-apparent or presumptive, or by reason, merely, of the expectation of a devise or bequest on account of the supposed or presumed affection of his ancestor or re lation. More than this, the doctrine as to expectant heirs has been extended to all re versioners and remaindermen. So that the doctrine not only included the class men tioned, who in some popular sense might be called 'expectant heirs,' but also all remain dermen and reversioners." The principle has been held to include younger sons of peers ; 15 Ch. D. 679. As to •what is a reversionary interest for this purpose, see 11 Eq. 265, 276 ; L. R. 2 Ch. 542; and as to what is independent advice, see 10 Eq. 641, in which the borrower, though accompanied by a friend who was a solicitor but did not act as such, or know the terms of the contract, was held not to have inde pendent advice.
Undervaluation is not alone a sufficient ground for setting aside a contract, convey ance, or mortgage of a -reversion, dtherWise fair; Stat. 31 Viet. c. 4; 2 Ch. Cas. 136; 35 Beay. 570; 32 L. J. Ch. 201.
By the civil law, such contracts are held contra bonos mores, and they are forbidden in general terms; Code 2, 3, de pactis 30; and in the French code it is forbidden to sell the succession of a living person, even with his eonsent; art. 1600; the same is the rule of the Italian code ; art. 1460; and of that of Austria ; § 879.
As to expectancy of life, see Luz TABLES.
See, generally, 2 Lead. Cas. in Eq., 4th Am. ed. 1530, 1559, 1605; 3 Porn. Eq. Jur. ch. 8, sec. 3; Brett, L. Cas. Mod. Eq. 3d ed. 69, n.; 9 Harv. L. Rev. 476; CATCHING BAR GAIN ; POST OBIT.