Christmas v. Winston

• Decision Date: 02 March 1910
• Citation: 67 S.E. 58,152 N.C. 48
• Court: North Carolina Supreme Court
• Parties: CHRISTMAS et al. v. WINSTON.

67 S.E. 58

152 N.C. 48

CHRISTMAS et al.

v.WINSTON.

Supreme Court of North Carolina.

March 2, 1910.

1. Perpetuities (§ 6^*) — Restraints on Alienation—Restraints on Conveyance.

A devise to certain persons and their heirs upon condition that the land shall not be divided or disposed of until all the devisees, or all who shall live that long, attain a certain age, is void as a restraint upon alienation.

[Ed. Note.—For other cases, see Perpetuities, Cent. Dig. §§ 4-56; Dec. Dig. § 6.*]

2. Perpetuities (§ 6*) — Restraints Upon Alienation—Devise to Trustees.

The rule that a condition prohibiting the' conveyance for a certain time of land devised in fee simple is void as a restraint upon alienation does not apply in its strictness, where thedevise is-to trustees, and not directly to beneficiaries.

[Ed. Note.—For other cases, see Perpetuities, Cent. Dig. §§ 4-456; Dec. Dig. § 6.^2-*]

Appeal from Superior Court, Wake County; W. R. Allen, Judge.

Proceedings by R. C. Christmas and others against R. W. Winston to construe a will. From a judgment for defendant, plaintiffs appeal. Affirmed.

Edward A. Johnson, for appellants.

Ay-cock & Winston, for appellee.

BROWN, J. J. H. Miller devised the land In question to the plaintiffs J. H. Christmas, G. C. Christmas, and Roscoe C. Christmas, and "their heirs equally share and share alike, " and in a subsequent part of his will provided that: "The property and estate given, devised and bequeathed by this last will and testament is given, devised and bequeathed upon condition that it shall not be divided or disposed of until said three parties, or all of them who shall live that long, shall reach the age of twenty-four years." One of said parties, J. H. Christmas, is dead, without leaving wife or children. G. C. Christmas is 25 years of age, and R. C. Christmas is 22 years of age.

The question presented is whether the devisees under the will of J. H. Miller can at this time execute a fee-simple deed to the defendant Winston, and give him immediate possession of the property described in the case agreed. We are of opinion that the condition attempted to be fastened upon the estate already conveyed in fee is such a restraint upon alienation as makes it void.

The general subject is clearly and learnedly discussed by Mr. Justice Montgomery in Latimer v. Waddell, 119 N. C. 374, 26 S. E. 122, 3 L. R. A. (N. S.) 668, and the conclusion reached that a condition annexed to a conveyance in fee simple by deed or will preventing alienation of the estate by the grantee within a certain period of time is void. It seems to be the law that since the statutes of quia emptores, and 22 Car. II, the conveyance of a fee-simple estate in land carries with it as a necessary incident the right of free and unlimited alienation. Wool v. Fleetwood, 136 N. C. 465, 48 S. E. 787 (67 L. R. A. 444), in which case Mr. Justice Walker says: "It cannot be questioned that a condition of nonalienation annexed to the grant of an estate in fee Is void, though confined in its operation to a limited period of time." Dick v. Pitchford, 21 N. C. 484. Among the older text-writers and adjudged cases authority can be found to the effect that this rule is not so comprehensive in its operation as to prevent all conditions and restraints upon the power of alienation, and in a number of cases such restraints as were limited in time and reasonable in application were upheld. 1 Wash. on R. Prop. 67-69; 4 Kent, Com. 135. This was the opinion of Chief Justice Pearson as expressed in his Law Lectures (page 135), and is recognized as sound law in a dictum by Merrimon, J., in Munroe v. Hall, 97 N. C. 209, 1 S. E. 651.

But this subject underwent a most complete and thorough examination in De Peyster v. Michael, 6 N. Y. 467, 57 Am. Dec. 470, and in Mandlebaum v. McDonell, 29 Mich. 87, 18 Am. Rep. 61, doubtless the ablest and most learned discussions of the subject to be found in the books. In the former case it is held by Chief Justice Ruggles that, upon the highest legal authority, it may be affirmed that in a fee-simple grant of land a condition, although limited in time that the grantee...