Gore v. Beren

• Decision Date: 21 January 1994
• Docket Number: No. 68420,68420
• Citation: 867 P.2d 330,254 Kan. 418
• Parties: Rosalyn W. GORE, Appellant, v. Robert M. BEREN, Appellee, and T.J. Land & Cattle Company and Mid Kansas Jewish Federation, Inc., Defendants.
• Court: Kansas Supreme Court

Page 330

867 P.2d 330

254 Kan. 418

Rosalyn W. GORE, Appellant, v. Robert M. BEREN, Appellee and T.J. Land & Cattle Company and Mid Kansas Jewish Federation Inc., Defendants.

No. 68420.

Supreme Court of Kansas.

Jan. 21, 1994.

Syllabus by the Court

1. The right to partition is considered an incident of common ownership. It is based on the equitable doctrine that it is better to have the control of property in one person than in several who may entertain divergent views with respect to its proper control and management. The general rule therefore is that all property capable of being held in cotenancy is subject to partition by judicial proceedings, the partition being either in kind or by appraisal and sale.

2. Although partition is a right much favored, nevertheless it has generally been held that a cotenant is not entitled to partition where he has entered into an agreement not to partition. The agreement acts as an estoppel, or constitutes a waiver of the right to partition. Not only is the cotenant who entered into the agreement not to partition bound thereby, but the courts have recognized that a cotenant deriving title through an instrument containing such an agreement is also bound.

3. The courts have generally recognized that an agreement not to partition may be implied, as well as express. An agreement not to partition is implied where the purpose of the transaction would be defeated by partition. For instance, an agreement giving cotenants rights of first refusal implies an agreement not to bring a partition action in lieu of a sale to the cotenants.

4. Because implied waiver of the right to partition is based on interpretation of a contract or agreement between cotenants, whether an agreement constitutes an implied waiver of the right to partition and the extent of that implied waiver or the condition for restoring the right to partition should be determined on a case-by-case basis.

5. The interpretation of a written contract that is free from ambiguity is a judicial function and does not require oral testimony to determine the contract's meaning. An ambiguity in a contract does not appear until two or more meanings can be construed from the contract provisions.

6. Regardless of the construction of a written contract made by the trial court, on appeal a contract may be construed and its legal effect determined by an appellate court.

7. In placing a construction on a written instrument, reasonable rather than unreasonable interpretations are favored by the law. Results which vitiate the purpose or reduce the terms of the contract to an absurdity should be avoided.

8. In ruling upon whether a future interest violates the rule against perpetuities, speculation concerning the probabilities of various subsequent developments is not indulged in by the courts, but it is a sufficient violation of the rule if an interest might possibly vest beyond the period permitted.

9. The rule against perpetuities springs from considerations of public policy. The underlying reason for and purpose of the rule is to avoid fettering real property with future interests dependent upon contingencies unduly remote which isolate the property and exclude it from commerce and development for long periods of time, thus working an indirect restraint upon alienation, which is regarded at common law as a public evil.

10. Agreements creating an option or a preemptive right to purchase real estate constitute property interests which are subject to the rule against perpetuities.

11. A document should be interpreted where feasible to avoid the conclusion that it violates the rule against perpetuities.

12. A restrictive covenant is to be construed strictly; where it is subject to more than one interpretation, that consistent with unencumbered use and alienability of property is to be preferred.

13. The validity of a preemptive right under the rule against perpetuities depends upon whether the right is found to be personal to either or both of the parties involved so that the right must necessarily expire during the lifetime of one of the parties. Where a preemptive right is personal to the prospective buyer and does not extend to his or her heirs or assigns, the equitable interest would necessarily vest during his or her lifetime.

14. The right of first refusal in the agreement at issue is personal to the signatories to the agreement and does not run to successor owners; it ends when the last signatory dies or divests himself of his interest or otherwise waives the right.

George C. Bruce, Martin, Pringle, Oliver, Wallace & Swartz, Wichita, argued the cause, and Brian S. Burris and Ellen Tracy, of the same firm, were with him on the briefs, for appellant.

Thomas D. Kitch, Fleeson, Gooing, Coulson & Kitch, Wichita, argued the cause, and Jordan E. Clay, of the same firm, was with him on the briefs, for appellee.

ABBOTT, Justice.

This appeal involves the trial court's dismissal of a partition action because the land was subject to a real estate agreement which contained a "right of first refusal" provision. The Court of Appeals affirmed the trial court in an unpublished opinion filed May 14, 1993.

The facts are undisputed. The property was purchased in 1962 by Theodore Gore, Robert M. Beren, and Theodore I. Leben. They entered into an agreement effecting the cotenancy. The agreement contained a "preemptive right" or "right of first refusal" provision which is now the center of controversy. The provision provides:

"The parties hereto further agree that should any party hereto desire to sell all or any part of his interests in either or both of said parcels of land, he shall promptly give written notice to the other co-tenants with full and complete information concerning the terms of the proposed sale, and the other co-tenants shall then have an option and prior right for a period of twenty (20) days after the receipt of said written notice to purchase the interest of the party desiring to sell said interest on the same terms and conditions which the selling party proposes to sell. There shall be no preferential right to purchase where any co-tenant wishes to mortgage his interest or to dispose of his interest by sale or transfer thereof to a corporation in which said co-tenant owns or controls a majority stock interest. Any sale contemplated by this paragraph shall refer to and mean a bona fide sale.

"This agreement is binding upon the parties hereto and their respective heirs, administrators, executors and personal representatives."

Theodore Gore is deceased. His interest in the property is now owned by his widow, Rosalyn W. Gore, the plaintiff in this case. Theodore I. Leben's interest was transferred to T.J. Land & Cattle Company, a corporation. Mid Kansas Jewish Federation, Inc., also owns an undivided interest in three of the seven parcels of land subject to the agreement. The defendant, Robert M. Beren, is the only remaining signatory of the agreement who owns an undivided interest in the property.

On July 16, 1991, representatives of the Gore and Leben interests offered to purchase Beren's interest in the property or to sell to Beren their interests in the property. Beren declined to buy or sell in accordance with the terms stated in the July 16, 1991, letter.

Rosalyn W. Gore then filed this partition action. Beren answered that the 1962 agreement waived, modified, or revoked the right to partition the subject real estate. Gore named the other cotenants as defendants. T.J. Land & Cattle Company and Mid Kansas Jewish Federation, Inc., have not entered an appearance in the case and are not participating in this appeal.

The case was submitted to the trial court for decision based on a stipulation of facts and trial briefs. The trial court found:

"1. The 1962 Agreement (Agreement) executed by Theodore Gore, Robert M. Beren, and Theodore I. Leben created a right in these parties commonly referred to as a 'right of first refusal' or a 'preemptive right,' which requires any party to the Agreement who desires to sell his undivided interest to:

"a. obtain a bona fide offer from a third party to buy the undivided interest on specific terms the third party is ready, willing and able to comply with;

"b. promptly give written notice of the proposed sale to the other parties to the Agreement;

"c. include in the written notice full and complete information of the terms and conditions of the sale;

"d. allow the other parties to the Agreement twenty days to purchase the undivided interest on the same terms and conditions the third party is willing to give.

"2. By entering into the Agreement, the original parties thereto waived their right to partition the property until such time as they complied with the terms of the Agreement summarized in paragraph 1 above.

"3. The Agreement is valid and binding on the original parties to the Agreement and is enforceable by any original party against any other original party and any successors in interest to such original party. Consequently, the Agreement is binding on plaintiff who has succeeded to the interest of her husband, Theodore Gore.

"4. The July 1991 letter relied on by plaintiff fails to comply with the requirements of the Agreement summarized in paragraph 1 above.

"WHEREFORE, having found that plaintiff's predecessor in interest waived his right to partition to plaintiff's undivided interest in the subject property without first complying with the Agreement and that plaintiff's July 1991 letter does not constitute compliance with such Agreement, the Court holds that plaintiff has no right to bring the current action seeking partition and that such partition action must be dismissed."

On appeal, Gore contended that the preemptive right (right of first refusal) provision does not absolutely waive the right to partition and, alternatively, that the provision violates the rule against perpetuities. The Court of Appeals did not address the waiver of partition...