Libby v. Winston

• Decision Date: 08 June 1922
• Docket Number: 7 Div. 226.
• Parties: LIBBY v. WINSTON ET AL.
• Court: Alabama Supreme Court

93 So. 631

207 Ala. 681

LIBBY v. WINSTON ET AL.

7 Div. 226.

Supreme Court of Alabama

June 8, 1922

Rehearing Denied June 30, 1922.

Appeal from Circuit Court, De Kalb County; W. W. Haralson, Judge.

Bill by Ralph W. Libby against Kate C. Winston and others (revived against appellees) to quiet title to lands. From a decree denying relief, complainant appeals. Affirmed.

Goodhue & Goodhue, of Gadsden, for appellant.

C. A Wolfes, of Fort Payne, for appellees.

McCLELLAN J.

The rule-stated in Hill v. Gray, 160 Ala. 273, 276, 49 So. 676, and in Graves v. Wheeler, 180 Ala. 412 416, 61 So. 341- which pronounces void clauses in deeds or devises in absolute, not partial, restraint of the power of alienation of land conveyed or devised, is predicated of a grant or devise in fee simple. The essence of the stated rule is that the attempted restraint upon the power of alienation is inconsistent with the grant, the power to sell or lease being an inseparable incident of an estate in unqualified fee; and to allow such restraint would offend public policy. Mandlebaum v. McDonell, 29 Mich. 78, 18 Am. Rep. 61 73, et seq., contains a discriminative and instructive treatment of the subject. The rule's force and effect is not avoided by the fact that the attempted restraint of alienation is limited to a period of time. Christmas v. Winston, 152 N.C. 48, 67 S.E. 58, 27 L. R. A. (N. S.) 1084; 8 R. C. L. pp. 1114, 1115. The application of the rule to the instrument under consideration depends upon its character as a conveyance. If it is not a grant in fee, the rule of Hill v. Gray, supra, is inapplicable. The conclusion upon this question turns, of course, upon the character of the grant, the instrument's construction and its effect in that aspect.

In this jurisdiction the creation of conditional estates, while recognized, is not favored; and it has been held here that the creation of a conditional estate by deed or devise will not be pronounced unless the "intent of the grantor to make a conditional estate is *** clearly and unequivocally indicated." Zimmerman v. Daffin, 149 Ala. 380, 388, 42 So. 858, 861 (9 L. R. A. [N. S.] 663, 123 Am. St. Rep. 58); Hitt Lumber Co. v. Cullman Coal Co., 200 Ala. 415, 416, 417, 76 So. 347. In all cases where it is doubtful "whether a clause in a deed imports a condition of a covenant, the latter construction will be adopted." Zimmerman v. Daffin, supra; Elyton Land Co. v. R. R. Co., 100 Ala. 396, 405, 406, 14 So. 207, among others. However, if from the language of the instrument the intention to create a conditional estate is clear and unequivocal, effect must be accorded that express purpose, unless to do so offends positive law or public policy. Hitt Lumber Co. v. Cullman Coal Co., supra. The construction of this deed is undertaken in the light of these conservative principles.

An owner in fee of real estate may convey an estate on condition. Code, § 3416, provides:

"Lands may be conveyed, within the limits fixed by law, so as to avoid perpetuities, and subject to such other restrictions as are imposed by this Code, for such terms as the owner thinks proper; and courts are enjoined to give effect in such cases to the intention and meaning of the parties."

In Gray v. Blanchard, 8 Pick. (Mass.) 284-a deliverance approvingly quoted in Hitt Lumber Co. v. Cullman Coal Co., supra-it was said:

"Every proprietor of an estate has jus disponendi. He may grant it with or without condition; and if he grants it upon condition directly, the estate of the grantee will terminate with the breach of the condition, if the grantor chooses to avail himself of the forfeiture and enter for the breach."

To grants of valid conditional fees the rule against perpetuities does not apply to defeat or to avoid the right of entry of the grantor or devisor and his heirs for breach of condition, at however remote a time the breach may occur. Tobey v. Moore, 130 Mass. 448; Hopkins v. Grimshaw, 165 U.S. 342, 355, 356, 17 S.Ct. 401, 41 L.Ed. 739; Cowell v. Springs Co., 100 U.S. 55, 57, 58, 25 L.Ed. 547; Gray on Perpetuities (2d Ed.) §§ 304-310. After criticizing the soundness of numerous decisions concluding in accordance with the doctrine stated, Gray concedes, at section 310 of his second edition, that-

The "great consensus of authority, although without any consideration of the question involved, may perhaps be held to settle the law for the United States, and to create in this country an exception, arbitrary though it be, to the rule against perpetuities."

To like effect are his observations at sections 304 and 306. That author, in his notes to sections 306, 307, lists as within the category of his quoted statement Henry v. Etowah County, 77 Ala. 538, and Carter v. Chaudron, 21 Ala. 72, 88, 90

. The rule against perpetuities and the rule against the suspension of the power of alienation are the expressions of distinct conceptions that should not be confused. 21 R. C. L. p. 284, and notes.

This grantor, Winston, through the use of the phrase, in the granting clause "hath upon the conditions hereinafter mentioned," and through the further confirmatory phrase as expressive of the grantee's covenant and agreement, that "this sale and conveyance shall hold good and valid only upon the compliance by the" grantee and "her lawful representatives with the following conditions" (Italics supplied) conveyed to the grantee a conditional fee only, a defeasible estate, subject to divestiture upon breach of conditions. Carter v. Chaudron, 21 Ala. 72, 89, 90; Hitt Lbr. Co. v. Cullman Coal Co., 200 Ala. 415, 416, 417, 76 So. 347. The grantor's intent to convey a defeasible estate only is clear and...