Appeal
from Louisa Circuit Court.
THE
plaintiff filed a petition as follows:
"1.
That on the 5th day of March, 1879, one I. C. Freeland
recovered a judgment against him in this court for the sum of
$ 353.15, and costs of suit, including $ 35 attorney's
fees. * * * *.
"2.
That upon said judgment the said Freeland procured an
execution to be issued; that under said execution the
defendant Ellis, as sheriff, has sold unto said defendant I
C. Freeland the petitioner's interest in the following
described real estate, situated in said county, to-wit: * *
*.
"3.
Petitioner represents that the sale of said real estate by
defendant Ellis, as aforesaid, has cast a cloud upon his
title thereto, and works to him an irreparable injury.
"4.
He further represents that all the right, title, and interest
he has in and to said real estate is by virtue of a voluntary
conveyance made by his father, Abraham McCleary, to
petitioner, a copy of which is hereto attached and made a
part thereof; that under said deed he has gone into the
possession of said real estate, and has since the time of his
taking possession thereof used and occupied the same as his
homestead, together with his wife and family, he now being
the father of children; that he owned no interest in said
land subject to execution, and that said I. C. Freeland
defendant, had legal notice thereof, and that said sale by
said sheriff conveyed no interest in or to said real estate
that unless restrained said defendant Ellis will, in due
time, execute his sheriff's deed for said premises; that
petitioner is without remedy save in a court of equity. He
therefore, prays that said defendant Ellis be enjoined from
further proceeding under said execution, and from executing
said deed for said premises, and that said sheriff's sale
for said property may be set aside, and that he may have such
other relief as to the court may seem meet."
Attached
to the petition are copies of the judgment, execution, return
and certificate of purchase. The deed referred to in the
petition, under which plaintiff claims the property in
controversy, is as follows:
"Know
all men by these presents, That I, Abraham McCleary, of the
county of Louisa, of the State of Iowa, do give my son, John
McCleary, all my interest in the following lands. * * * To
have the above described lands his lifetime, and to go to his
children at his death, but if he dies without children, then
the above described land to go to his brother George
McCleary, and at his death is to go to his brother's
children--that is, Geoege McCleary's children, but if
George dies without children, it is to go to his sister's
children. It is expressly understood that he shall not part
with it nor sell it, nor shall any person sell it for him or
for debts whatsoever."
The
deed described one hundred and ninety acres. The defendants
demurred to this petition. Afterward the defendant filed an
offer to release as follows:
"The
defendant Freeland hereby offers to release from the
operation of the sheriff's sale the homestead of
plaintiffs, John McCleary and wife, as provided by law, and
to the extent of the law exemption."
The
court sustained the demurrer. The plaintiff declined to
further plead, and judgment was rendered against him for
costs. The plaintiff appeals.
AFFIRMED.
OPINION
DAY, J.
I.
From an
examination of the deed of Abram McCleary it is evident that
it conveys a fee simple estate. The conveyance is of a life
estate to George McCleary, remainder to his children, but if
he should die without children, to his brother George and his
children; and if George should die without children,
remainder to his sister's children. The conveyance is of
a life estate and a vested remainder in fee. 4 Kent's
Com., 203. No reversionary interest is retained in the
grantor. He has disposed of his entire estate in fee. The
disposition of the estate is to the beneficiary direct,
without the intervention of trustees. The
question in this case is, can the grantor of the fee impose
restraints upon alienation?
Littleton,
in section 360, states the doctrine upon this subject as
follows: "If a feoffment be made upon this condition,
that the feoffee shall not alien the land to any, this
condition is void, because when a man is infeoffed of lands
or tenements he hath power to alien them to any person by the
law. For if such a condition should be good, then the
condition should oust him of all the power which the law
gives him, which should be against reason, and therefore such
a condition is void." Commenting upon this, Lord Coke
says: "And the like law is of a devise in fee upon
condition that the devisee shall not alien, the condition is
void, and so it is of a grant, release, confirmation, or any
other conveyance, whereby a fee simple doth pass. For it is
absurd and repugnant to reason that he that hath no
possibility to have the land revert to him should restrain
his feoffee in fee simple of all his power to alien. And so
it is if a man be possessed of a lease for years, or of a
horse, or any other chattel, real or personal, and give or
sell his whole interest and property therein, upon condition
that the donee or vendee shall not alien the same, the same
is void, because his whole interest and property is out of
him, so as he hath no possibility of a reverter, and it is
against trade and traffic, and bargaining and contracting
between man and man: and it is within the reason of our
author that it should ouster him of all power given to
him." Coke on Litt., 223 a.
The
case of Mandlebaum v. McDonell, 29 Mich. 78
contains a very elaborate and exhaustive consideration of
this question. In that case a devise for life was made to the
widow of the testator, remainder in fee to his sons and
grandson, with a restriction upon alienation during the life
of the widow, if she remained unmarried, and until the
grandson, who was then four years old, should attain the age
of twenty-five. The restriction upon the right of alienation
was held void. In announcing the opinion of the court,
Christiancy, J., employs this language:
"If there is any English decision since the statute
quia emptores, where the point was involved, in
which it was held competent for a feoffor, grantor or
devisor, of a vested estate in fee simple, whether in
remainder or possession, by any condition or restriction in
the instrument creating it, to suspend all power of the
feoffee, grantee, or devisee, otherwise competent, to sell
for a single day, I have not been able to find it: and the
able counsel for the defendants, whose research nothing of
this kind is likely to escape, seem to have been equally
unsuccessful." And further: "We are entirely
satisfied there has never been a time since the statute
quia emptores when a restriction in a conveyance of
a...
