Hardy v. Galloway

• Decision Date: 19 October 1892
• Citation: 111 N.C. 519,15 S.E. 890
• Court: North Carolina Supreme Court
• Parties: Hardy et al. v. Galloway.

15 S.E. 890

111 N.C. 519

Hardy et al.

v.Galloway.

Supreme Court of North Carolina.

Oct. 19, 1892.

Deed—Repugnant Condition.

A condition, in a deed in fee of certain land, provided that the grantors, their heirs and assigns, should have the right to repurchase the land; and that if the grantee conveyed the land by deed or mortgage to any one without first giving the grantors, their heirs or assigns, the privilege of repurchasing the same, the deed should be void. Held, that such condition was repugnant to the grant, and void.

Appeal from superior court, Pitt county; Connor, Judge.

Suit by Hardy Bros, against J.B.Galloway to foreclose a mortgage. Judgment for plaintiffs. Defendant appeals. Affirmed.

On June 13, 1887, J. T. Evans, being indebted to plaintiffs in a certain sum, executed to them a mortgage deed, wherein he conveyed to plaintiffs a tract of land containing 57 acres, and a lot containing 1 acre. The 1-acre lot was conveyed to Evans by one J. B. Galloway and wife in 1884. The deed contained the following clause: "The said J. B. Galloway and wife, Alice L. Galloway, retaining for themselves, and their heirs and assigns, the right to repurchase said land when sold, the said Jefferson Evans conveying a title for said lands, either by deed or mortgage, to any person without first giving J. B. Galloway and wife, and their heirs and assigns, the privilege of repurchasing the same, renders this deed null and void; otherwise it remains in full force." When Galloway learned of the mortgage to plaintiffs, he took possession of the lot, and was In possession when plaintiffs began this suit to foreclose. The superior court found for plaintiffs.

J. H. Small, for appellant.

J. B. Yellowley, for appellees.

Shepherd, J. Considered either as a conditional sale or a contract to reconvey, his honor was entirely, correct in holding as void for uncertainty the provision in the deed respecting the right of the grantor to repurchase the land when sold. No time is fixed for performance, nor is there any stipulation whatever as to the price to be paid. The provision, not being a limitation, can therefore only take effect, if at all, as a condition subsequent; and, viewed in this light, we cannot hesitate in deciding that the restriction upon alienation, attempted to be imposed after the grant of the fee, is repugnant to the nature of the estate granted, contrary to the policy of the law, and therefore inoperative. Ever since the statute of quia emptores, the right of alienation has been considered as an inseparable incident to an estate in fee, (Co. Litt. 436; Williams, Real Prop. 61, 62; 1 Washb. Real Prop. 79;) and except in some cases, where the restriction is only partial, the law does not recognize or enforce any condition which would directly or indirectly limit or destroy such a privilege, —iniquum est ingennis hominibus dos esse liberam rerum suarnm alienationem. Accordingly it has been held by this court that a condition that a devisee in fee shall not sell or incumber his land before attaining the age of 35 is void, " because it is inconsistent with the full and free enjoyment which...