ment of writing given by my said attorneys, shall be as binding on me, as if I were personally present.'

These words do not import, in my opinion, a power in the attorneys to convey the good and sufficient title, for that was to be done by Mullins. I apprehend that nothing more was intended than that the agents should seek for purchasers, agree upon terms, &c. and that any instrument defining these terms, should be ratified. But if these words do import an authority to convey, it either professes to ratify what is lawfully done (which, if thus done, would then have vested a valid title in the defendant) or, it offers to ratify any instrument, however unknown to the common law, or to the statutes of Georgia, and particularly the abovementioned statute of 1785; which ratification, I presume, would be wholly inoperative, and could not prove a legitimate source of legal title; for, if the common law requires a particular mode of executing a conveyance, neither the covenant of Mullins, nor his ratification would render the title of the defendant valid, if it reposes on a deed which has been made in disregard of that requisition. And so also of all statutory requisitions. The act of 1766 of Maryland, for example, requires a deed to be acknowledged and recorded, in order to be valid even as between the grantor and grantee. Now, if a power of attorney should authorize and covenant that any deed, however informally made by the attorney, should be equally valid with a deed made in compliance with all the requisitions of law; and the deed is either not acknowledged, or not recorded, it could not be read in evidence as a source of title; and the power, the covenant, and the ratification would neither help it, nor estop the original owner from treating the deed as a nullity. We shall presently assign our reasons for believing the deed, 14th November, 1820, from Young and Blake, to be wholly inoperative as a conveyance on common law principles; and the statute 1785, so far from legalizing the conveyance, appears to me to have a contrary effect. All that this statute contemplated was, (for the removal of doubts) to enact that deeds made in virtue of powers of attorney should be valid to pass the estate. But it never intended to introduce as lawful any new mode of executing such deeds. Two things, therefore, are still requisite to such deeds since this statute, viz. first, that the power of attorney should itself expressly confer a power of sale to the attorney; and secondly, that the conveyance when made, should be executed according to the

requisitions of law. The power of attorney, now under consideration, does not give even impliedly, a power to the attorneys to convey; and even were there an express power, we shall presently state our reasons for believing that the deed. which professes to be made in virtue of it, has not been properly executed. On this first view, in relation to this instrument, I have no hesitation in stating that it does not confer on Young and Blake a power to convey the lot, either in their own name, or even in the name of Mullins, their principal.

SECONDLY. If this instrument be a mere covenant by Mullins with Young and Blake, to convey a good title to any lot or lots when drawn (as I think it is) still it is subject to various difficulties; and even if clear of the doubts alluded to, it cannot, as a covenant, be the vehicle of title to the defendants in this cause. Whether we regard the res subjecta of this covenant as a mere naked possibility, or as a possibility coupled with an interest, or as a chose in action; or in whatever other light we may consider it, still it is but a covenant, and can operate only in personam, and be creative, as such, of a personal charge only against the covenanter. Various questions may be here presented, which I shall but briefly examine; for, whatever may be the sound law as to each and all of them, we consider the plaintiffs' title at law as free from all doubt, on distinct grounds, which will be hereafter examined. The questions to which we allude are briefly these :

1. What was the precise nature of John Mullins's right, prior to the drawing of the lottery. Was it a naked possibility, or a possibility coupled with an interest?

2. Was the right assignable at law, and if not, what would be the relief of the covenantees, and the purchasers under them, in equity?

3. If it was a naked possibility, not assignable at law, would a covenant, charging such a right, be in any manner regarded by a court of law?

4. Are possibilities, when coupled with an interest, assignable at law; and if not, would a covenant to assign them be enforced at law by the recovery of damages for not conveying, after the possibility has matured into a vested interest?

In the course of the ensuing opinion I shall have occasion to advert to the foregoing questions.

THIRDLY. Is this instrument a covenant, coupled with a power in Young and Blake to carry the same into effect? We

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. But 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

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