McFadden v. McFadden

• Decision Date: 19 April 1922
• Docket Number: No. 14456.,14456.
• Parties: McFADDEN v. McFADDEN.
• Court: Illinois Supreme Court

302 Ill. 504

135 N.E. 31

McFADDEN

v.McFADDEN.

No. 14456.

Supreme Court of Illinois.

April 19, 1922.

Suit by George Chester McFadden against Benjamin L. McFadden for specific performance of a contract for the sale of real estate. Decree for complainant, and defendant appeals.

Affirmed.

Appeal from Circuit Court, Mason County; Guy R. Williams, judge.

Edmund P. Nischwitz, of Havana, for appellant.

Nortrup, Nortrup & Hayes, of Havana, for appellee.

CARTER, J.

This was a bill filed in the circuit court of Mason county asking for the specific performance of a contract entered into between appellee and appellant with reference to certainreal estate in said county. On a hearing in the circuit court the prayer of the bill was granted and a decree entered requiring the specific performance of the contract. An appeal was taken from that decree to this court.

In January, 1907, Henry A. McFadden, then a widower, the father of appellee, George Chester McFadden, conveyed to the appellee by warranty deed certain farm lands and also an undivided one-half interest in certain city property in the city of Havana, Mason county, Ill. The deed contains the following clause:

‘My said son to have and to hold all the aforesaid real estate in fee simple, but I reserve and retain the full use and benefits thereof for and during my life. * * * But said lands and lots are hereby conveyed and to be held on this express condition: that my said son after my decease shall have the possession and all the rents, issues and profits thereof, but that within the period of twenty years after my decease he shall not convey, mortgage or in any way dispose of or part with the same, except to lease it to tenants for the rents, issues and profits before mentioned.’

The grantor in said deed died in 1916, being at that time seized and possessed as owner in fee simple, of the undivided one-half of the parcel of land in Havana. He also left him surviving a widow, Anna A. C. McFadden (apparently he had remarried), and as his only heirs at law his three sons, the appellee, George C., the appellant, Benjamin L., and Bruce H. The same month in which the grantor died his widow conveyed by quitclaim deed to the three sons all her interest in any real estate, wherever situated, owned by her former husband at the time of his death. In March, 1917, Benjamin L. and Bruce H. McFadden, with their respective wives conveyed to the appellee all their interest in the lot involved in this suit. It appears that thereafter appellee and appellant entered into a written contract respecting the sale of the lot by George to his brother Benjamin. The contract gave the terms and conditions upon which the sale was to be made, and provided that in the event of default on the part of either party to the contract the other party should have his remedy by way of specific performance. After all the provisions of the contract had been complied with by appellee, appellant refused to accept the deed from appellee on the ground that appellee could not convey a merchantable title because of the provision above quoted, contained in the deed conveying the half interest in the lot from Henry A. McFadden to his son George. On a general and special demurrer filed to the bill of complaint, setting out substantially the facts as heretofore stated, and a hearing on the same in the circuit court, the demurrer was overruled and a decree entered in the circuit court requiring appellant to perform his part of the contract and pay to appellee the purchase price of $8,000 for the lot on the execution and delivery to him of a proper deed of conveyance, and further decreeing that the clause mentioned in the deed from Henry A. McFadden to appellee, which provided that as to one-half of said property appellee should not convey, mortgage, or in any way dispose of the same for a period of 20 years after the decease of Henry A. McFaddenwas an attempted restraint on alienation and void. The appellant elected to stand by his demurrer and prayed an appeal to this court.

The sole question at issue in this case is whether the provision in question that the half interest in said lot should not be conveyed or mortgaged or in any way disposed of during 20 years after the grantor's decease was a void restraint on alienation and against public policy under the laws of this state.

Counsel for appellant concedes that the general rule is that an absolute restraint on alienation of an estate granted in fee simple is repugnant to that part of the conveyance which grants a fee-simple estate and is void as against public policy, but argues that a ‘grant or devise may be conditioned that the grantee or devisee shall not alienate for a particular time or to a particular person.’ With this we cannot agree. This court held in Jones v. Port Huron Engine Co., 171 Ill. 502, on page 507, 49 N. E. 700, 701, that--

‘A restriction,...