Campbell v. Campbell
| Decision Date | 09 June 1950 |
| Citation | 313 Ky. 249,230 S.W.2d 918 |
| Parties | CAMPBELL et al. v. CAMPBELL et al. |
| Court | United States State Supreme Court — District of Kentucky |
Don A. Ward, Hazard, for appellants.
Napier & Napier, Hazard, for appellees.
On November 2, 1939, the appellants, Cleveland Campbell and his wife, Dicy Campbell, executed a deed of conveyance for the land in controversy in this action to Charlotte Campbell. The deed is admittedly in the usual form except for this covenant: 'It is further agreed by the parties that in the event the said Charlotte Campbell wants to sell this land at any time, the said Cleveland Campbell is to have the first preference on her offer.' On March 4, 1944, Charlotte Campbell and her husband, Asberry Campbell, executed a deed to the property to the appellees Dial and Belle Williams for a consideration of $800. Soon thereafter Charlotte Campbell died, and on June 3, 1948, Cleveland Campbell and Dicy Campbell instituted this action in the Perry Circuit Court against Asberry Campbell, Dial Williams and Belle Williams, in which they relied upon the reservation in the deed from Cleveland Campbell and wife to Charlotte Campbell to recover the land, and they asked the court to require the defendants to execute to them a deed for the consideration of $800, which amount they tendered into court. During the four year period mentioned above, the Williamses constructed several buildings on the land in question which they valued at about $2,000. Asberry Campbell and the Williamses claim that the tract was offered to Cleveland and Dicy Campbell in accordance with the option, and that they refused the offer. Cleveland and Dicy Campbell claim that they were merely notified late on a Saturday afternoon that the property was going to be sold; that they said they wanted to purchase it, but could not get the money until the bank opened; and that on the following Tuesday they tendered the $800 to the appellees Dial Williams and Belle Williams.
On the appeal appellants brought up the record of the pleadings and their own depositions only. The appellees complain of this, and say that the appeal should be dismissed because appellants have not brought all of the record. However, the appellees filed a counter schedule below and brought up the remainder of the record. The chancellor expressed the opinion that the contract or option right was personal to Cleveland Campbell, but he dismissed the petition because, in his opinion, this court had declared all clauses such as the one in question void as repugnant to the rule against perpetuities. He evidently was referring to the case of Maddox v. Keeler, 296 Ky. 440, 177 S.W.2d 568, 162 A.L.R. 578, which does not control if the contract was a personal one. He made no finding of facts in regard to whether or not the land was offered to Cleveland Campbell before it was conveyed to the Williamses or whether the offer, if made, was accepted or rejected by Campbell.
The first question presented is the effect of appellants' act in bringing only a partial transcript of the evidence to this court. This is an insufficient ground on which to affirm the judgment for two reasons: (1) The omitted evidence was supplied by the appellees so that the entire record is now before this court; and (2) the chancellor did not make any finding of fact, and therefore there is no question before the court which requires an examination of the evidence.
The second and controlling question is this: Was the option personal to Cleveland Campbell or was it of such a nature as to be transmissible? The general rule recognized by the great majority of courts is that an option to purchase real property, unlimited as to the time for its exercise or extending beyond the period limited by the rule against perpetuities, violates such rule as well as the rule against restraints on alienation. In Restatement of the Law of Property, volume 4, section 394, the rule, subject to exceptions not material here, is stated as follows:
'* * * the reservation of an option to repurchase the whole or any part of the interest conveyed, made in favor of the conveyor, is invalid, because of the rule against perpetuities, when, under the language and circumstances of the reservation, such option
'(a) may continue for a period longer than the maximum period described in section 374 (); and
'(b) would create an interest in land, or in some unique thing other than land, but for the rule against perpetuities.'
In practically all of the cases holding that the reservation of an option to repurchase...
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Old Port Cove Holdings v. Condo. Ass'n
...P.2d at 195 (finding the rule applicable to an option, but imposing a reasonable timeframe to avoid a violation); Campbell v. Campbell, 313 Ky. 249, 230 S.W.2d 918, 920 (1950) ("The general rule recognized by the great majority of courts is that an option ... extending beyond the period lim......
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Kershner v. Hurlburt
...does not violate the rule against perpetuities. Williams v. Diederich, 359 Mo. 683, 686, 223 S.W.2d 402, 403; Campbell v. Campbell, 313 Ky. 249, 252, 230 S.W.2d 918, 920, 921; Winstanley v. Chapman, 325 Mass. 130, 132, 89 N.E.2d 506, 508; Hall v. Crocker, 192 Tenn. 506, 510, 241 S.W.2d 548,......
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Otter Creek Development Co. v. Friesenhahn
...Rule Against Perpetuities, § 633 (1915) Boyer,supra § 811 at 75-22; Roemhild v. Jones, 239 F.2d 492 (8th Cir.1957); Campbell v. Campbell, 313 Ky. 249, 230 S.W.2d 918 (1950), cited with favor in Furthermore, such an interpretation has support in a growing trend of cases to use less rigidity ......
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Stratman v. Sheetz
...preference will be accorded to the construction which upholds its validity. See, e.g., Roemhild v. Jones, supra; Campbell v. Campbell (1950), 313 Ky. 249, 230 S.W.2d 918. Stratman also argues that the 1967 agreement should be held to be descendible to the heirs of Sheetz under R.C. 2113.50,......