WHERE ALL ARE SUI JURIS.

6

819

power to authorize the sale of the property of parties sui juris and seized of a vested estate in the premises against their consent. Where it is judicially established,' said Chief-Justice Lewis, that the estates of tenants in common cannot be divided without prejudice or spoiling the whole, and where no one of the parties will take the property at the valuation, the power to sell is exercised by the courts, and this power is derived from the legislature. But it is justified by the necessities of justice; the parties in interest cannot otherwise enjoy their rights; and a sale in such a case is as valid as a judicial sale for payment of debts.'" Accordingly, where land was bequeathed to executors in trust to support the testator's son out of the rents, issues, and profits, with a proviso that none of it should be sold until his death, and the whole then distributed among his children, an act requiring the orphans' court to appoint a trustee to sell and invest the proceeds for the uses of the will was held unconstitutional by the court below, which refused to exercise the power without the consent of the remainder-men, and the judgment was sustained by the court of last resort. The same point may be found in Shoenberger v. The School Directors; and it follows that land cannot be converted into money at the instance of a tenant for life against the will of an executory devisee or a remainder-man who is in being and not disabled from judging for himself, nor on the application of a remainder-man contrary to the wish of the first taker, unless the disability of one or more of the parties, or, agreeably to the Pennsylvania decisions, the unproductive nature of the property, creates an exception to the rule.a

3

Agreeably to the view taken in Brevoort v. Grace, while the legislature may specifically authorize the sale of land

1 See also Powers v. Bergen, 6 N. Y. 358.

2 Ervine's Appeal, 16 Pa. 256.

8 32 Pa. 34.

4 Powers v. Bergen, 6 N. Y. 358; Brevoort v. Grace, 53 Id. 245; Shoenberger v. The School District, 32 Pa. 34; Ervine's Appeal, 16 Id. 264; Kneass's Appeal, 31 Id. 87; Hegarty's Appeal, 75 Id. 503, 507. 5 53 N. Y. 245.

820

LEGISLATURE CANNOT DIRECT SALE

belonging to infants or other persons not capable of acting for themselves, and also the contingent rights of persons not in esse, it has no such power relatively to persons of full age and under no disability, and cannot direct the conversion of their interest into money, whether it be "a vested estate in expectancy, or a contingent estate in expectancy." A tenant in fee no more represents the person to whom the estate is devised over in the event of his dying childless, than he represents a vested remainder-man. An enactment that the property shall be sold at his instance without summoning the executory devisee and obtaining his consent, operates as a deprivation without due process of law; and as there is under these circumstances an entire want of power, it is immaterial that the sale will be beneficial to all the parties concerned. "It is insisted," said Grover, J., "that the act in question should be sustained for the reason that some of the heirs are infants, and that the legislature has the power to authorize the sale of the interests of these infants. But this does not confer the power to authorize a sale of the interests of the adults without their consent. It is further insisted that although the legislature may not have the power to authorize the sale of an estate in possession or a vested estate in expectancy of an adult without his consent, yet it can authorize the sale of a contingent estate in expectancy. I can see no reason for the distinction. An owner sui juris is equally competent to determine and manage for himself in the one case as in the other. The foundation of the power of the legislature to act in behalf of any owner is the want of capacity to act for himself; and this reason no more extends to the case of a contingent than to a vested expectant estate."

The difference between this opinion and that which prevails in Massachusetts and Pennsylvania, is that, agreeably to the view taken in the latter States, land may be sold at the instance or on behalf of persons who are not sui juris, although other persons who are sui juris and are also interested do not concur in the application. A joint owner or remainder-man, whether his interest be vested or contingent, who is in being and competent to decide for him

WHERE NO LEGAL NECESSITY EXISTS.

821

self, will not be compelled in New York to part with his property by a court or legislatively, because another owner or the tenant for life is under age or insane and stands in need of such order or decree. This conclusion would seem to be entirely just, unless the respective estates or interests are so inextricably involved that they cannot be disentangled in the ordinary course of proceedings in partition, when a sale may be decreed by a court of equity as the only means of giving each his share.

If land is devised one half to A absolutely, and the other half to B for life, remainder in fee to his minor children with an executory devise over to A, and the latter opposes a sale which B desires for the education and maintenance of the infants, the court may put an end to the controversy by directing the master to sell and distribute the proceeds, or, if the property can be divided without prejudice, set the respective shares off in severalty; B's interest will then be distinct from A's, and the title of the executory devisee will not, agreeably to the view taken in Pennsylvania, be allowed to stand in the way of the conversion which is necessary for the children, although he is sui juris and does not consent, the reason being that the right to distribution is paramount, and may be carried into effect through a sale if there is no other way.1

It is at the same time generally conceded that the legislature cannot, by assuming the necessity which can alone justify the exercise of such a power, take the estate of one man and transfer it to another, even through the instrumentality of a sale to the highest bidder, on the plea that the effect is simply to convert the property into money, which will be invested and bear interest for all concerned.2 The statute should consequently recite the facts which warrant the conversion; and whether it does so or not, the case may be reviewed by the courts, and the sale set aside if there is

1 See Smith v. Townsend, 32 Pa. 434, 442; Greenawalt's Appeal, 37 Id. 95, 100.

2 Powers v. Bergen, 6 N. Y. 358; Lane v. Dorman, 3 Scammon, 242. See opinions of the judges, 4 N. H. 572.

822

THE POWER TO CONVERT, JUDICIAL.

no sufficient ground. The existence of liens for taxes or other incumbrances will not, therefore, warrant the sale of an entire estate consisting of several parcels, if it appears that one of them might and did yield enough to discharge the debts.2 The power to direct a sale for the payment of debts or on the ground that such a conversion is necessary or beneficial to persons who from infancy or other causes are unable to act for themselves, depends on facts which should be judicially ascertained in due course of law, and not left to a body which may lay down rules but cannot properly determine whether the circumstances require their application,3 but is viewed in Massachusetts as ministerial, because there is no controversy between party and party, nor is any question. of ownership involved.1

The problem has been simplified in some of the States by a constitutional prohibition of private or special legislation and laws conferring the requisite powers on the courts; 5 but the question remains, Can a contingent interest be so disposed of without the owner's consent, although all the parties are sui juris and there are no debts? and was answered affirmatively in Pennsylvania.

1 Powers v. Bergen, 6 N. Y. 358.

2 Brevoort v. Grace, 53 N. Y. 245.

See post, p. 846; also opinions of the judges, 4 N. H. 572; and Powers v. Bergen, 6 N. Y. 538; Brevoort v. Grace, 50 N. Y. 245; Kneass's Appeal, 31 Pa. 87; Ervine's Appeal, 16 Id. 265; Palairet's Appeal, 67 Id. 493; Hegarty's Appeal, 75 Id. 503.

4 Rice v. Parkman, 16 Mass. 326; Blagge v. Miles, 1 Story, 426, 444; Davison v. Johannot, 7 Met. 388; Sohier v. The Massachusetts General Hospital, 3 Cushing, 483.

5 Burton's Appeal, 57 Pa. 213.

• Greenawalt's Appeal, 37 Pa. 95.

LECTURE XXXVII.

What constitutes Property in the Sense of the Fifth and Fourteenth Amendments. Taking away the Remedy is a Deprivation of the Right. Choses in Action are as much Property as Things actually possessed. That which Another may Dispose of absolutely, or convert to his own Use, is not mine. — The Survivorship of a Joint Tenant, and a Remainder after an Estate Tail are within this Principle. Dower and Tenancy by the Curtesy. A Man's Papers are Property. - Unreasonable Searches and Seizures. - A Man cannot be compelled in a Criminal or Penal Proceeding to become a Witness against Himself, or to produce his Books and Papers. Repealing the Statute of Limitations will not revive a Right which it has barred. — Application of this Principle in Criminal Proceedings and to Debts. A Man may have a Right of Property in a Defence.

THE term "property "as used in the constitutional prohibition includes every right to the use, possession, enjoyment, or recovery of land, goods, or money which the law will vindicate if assailed, or that can be enforced as a defence or cause of action. As the obligation of a contract may be impaired by abrogating the remedy, so a like result will follow in the case of property; and if the action of ejectment were repealed, and no effectual means of redress given in its place, the legislature would become the accomplice of every intruder on another's land, and the owner be as much deprived by the State as if her officers had entered and turned him out. So every citizen has an inherent right to the use of the navigable streams and highways, which partakes of the nature of property, and may treat an act of assembly by which an inefficient remedy is substituted for that provided by the common law as a deprivation without due process.2 Conversely, he who, by taking away my means of answering or satisfying a demand, obliges

1 Rhines v. Clark, 51 Pa. 96; Barclay R. R. Co. v. Ingham, 36 Id. 201. 2 Rhines v. Clark, 51 Pa. 96.