Roemhild v. Jones

• Decision Date: 02 January 1957
• Docket Number: No. 15628.,15628.
• Citation: 239 F.2d 492
• Parties: Richard ROEMHILD, Appellant, v. Dr. Grey JONES and Bull Sprig Hunting Club, Inc., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

239 F.2d 492 (1957)

Richard ROEMHILD, Appellant, v. Dr. Grey JONES and Bull Sprig Hunting Club, Inc., Appellees.

No. 15628.

United States Court of Appeals, Eighth Circuit.

January 2, 1957.

John W. Moncrief, Stuttgart, Ark. (Virgil Roach Moncrief, Stuttgart, Ark., was with him on the brief), for appellant.

William M. Moorhead, Stuttgart, Ark. (Meehan & Moorhead, Stuttgart, Ark., and Donald E. Fahey, St. Louis, Mo., were with him on the brief), for appellees.

Before GARDNER, Chief Judge, and VOGEL and VAN OOSTERHOUT, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

Plaintiff, Roemhild, commenced this action to enforce rights he claims under reservations contained in a deed which he delivered to defendant Jones. The deed reserves an option to repurchase and certain water rights. The defendants are Dr. Grey Jones and Bull Sprig Hunting Club, Inc., the present title holder of the land in controversy by virtue of a deed from Jones. After the issues were made up defendants moved for judgment upon the pleadings, asserting that the complaint fails to state a claim against defendants upon which relief can be granted. This motion was sustained, and judgment was entered dismissing the complaint. This appeal is from such judgment. Jurisdiction is based upon diversity of citizenship and the jurisdictional amount.

Motion for judgment on the pleadings is authorized by Rule 12(c) of the Federal Rules of Civil Procedure, 28 U.S.C.A. The standards to be applied in passing on motions for judgment on the pleadings are stated in Barron and Holtzoff, Federal Practice and Procedure, Vol. 1, section 359, pages 673-674, as follows:

"The policy of the courts is to dispose of law suits on their merits whenever possible rather than on motions for judgments on pleadings. Such a motion is proper only if no material issue of fact is presented by the pleadings. A judgment will not be rendered on the pleadings unless the right thereto is clear and should be given only if the merits can be determined in that manner."

With these standards in mind, we look to the pleadings filed by the parties.

Plaintiff in his complaint, as amended, states that in 1945 he conveyed to Jones by quitclaim deed the one-half section of land here in controversy. The deed is in the usual form except that after the granting clause the following reservations appear:

"* * * reserving the right, however, to use the water from the ditch bordering said land and which the grantee covenants to construct on the outside of a levee which the proposes to erect around portions of said tract of land.

"And further reserving the right to repurchase said land from the grantee if he should at any time offer the same for sale, at the same price and amount grantee is now paying for same, and the grantee by acceptance of this deed agrees to and binds himself to such reservation."

The deed was recorded in 1945. Plaintiff further alleges that the deed was delivered at the urgent insistence of Jones who as an inducement agreed to excavate a ditch on the land he was purchasing, which would provide water for irrigation of plaintiff's land; that Jones failed to excavate the ditch called for by the water reservation, thereby causing damage to the plaintiff; that Jones also bound himself to resell the land to plaintiff at the price which he had paid if he should at any time offer the real estate for sale; and that without notice to plaintiff and in violation of plaintiff's right to repurchase, Jones in 1951 sold and conveyed the real estate to Bull Sprig Hunting Club, Inc., said grantee having constructive notice of plaintiff's rights. Plaintiff tendered performance of his option to repurchase and demanded specific performance of his repurchase option, cancellation of the deed to Bull Sprig Hunting Club, Inc., and all other relief that is equitable and proper.

The defendants answered, raising various defenses, among them that the option to repurchase was void because it violated the rule against perpetuities and also because it placed an unreasonable restraint upon alienation of the land. As to the water rights proviso, defendants assert that they have constructed ditches and levees and have not denied plaintiff use of water, that they are under no obligation to construct the ditches as claimed by plaintiff, that the water proviso is too indefinite to enforce, that the contract reservation cannot be varied by parol testimony, and that any rights of plaintiff under the water proviso are barred by laches and the statute of limitations. Defendants further assert that Jones originally acquired title as trustee for Bull Sprig Hunting Club, an unincorporated association, and that when said club was incorporated he merely transferred title from himself to the beneficial owner, the Bull Sprig Hunting Club, Inc., and that no sale was involved.

The judgment of dismissal does not disclose the reasons which led the trial court to believe the complaint did not state a cause of action. The trial court filed no opinion, and there is nothing in the record to indicate the basis upon which the trial court reached the conclusion that it did.

As heretofore stated, plaintiff's claims for relief are based upon the option and water provisos contained in his deed. The propriety of the judgment on the pleadings as to relief claimed under each of these provisos will be separately discussed.

We first consider the option proviso. Defendants contend that the option reservation is void because it violates the rule against perpetuities, and for the additional reason that it places an unreasonable restraint upon alienation. If the defendants are right upon either of these contentions, the plaintiff would be entitled to no relief under the option reservation. The option proviso reads, "reserving the right to repurchase said land from the grantee if he should at any time offer the same for sale, at the same price and amount grantee is now paying for same." The validity of this option must be determined by Arkansas law. The Arkansas court in construing deeds gives no preference to the granting clause over other parts of the deed, and reservations are given effect irrespective of their position in the deed. The instrument is construed in its entirety to ascertain the intention of the parties. Weatherly v. Purcell, 217 Ark. 908, 234 S.W.2d 32.

Perpetuities are forbidden by Article 2, Section 19, of the Arkansas Constitution. The common law rule against perpetuities, which prohibits the creation of future interests or estates which by possibility may not become vested within life or lives in being and 21 years thereafter, is followed in Arkansas. Hendriksen v. Cubage, Ark., 288 S.W.2d 608, 612. No Arkansas case has been found by either counsel or the court bearing on the question of whether the rule against perpetuities applies to an option to repurchase. Because of the view we take on the construction of the option, we deem it unnecessary to consider the conflicting decisions upon this issue in other jurisdictions.

The vital issue for determination is whether the option we are considering is personal and terminates upon the death of either the grantor or the grantee. Under its terms the option only arises if he (the grantee Jones) should offer the land for sale. It is no where stated that the option is available if the grantee, his heirs, or assigns offers it for sale. We find nothing to persuade us that the parties intended the option to continue beyond the lifetime of Jones. Jones could only offer the land for sale during his lifetime. We believe that the parties intended the option to expire upon the death of Jones. If we are right in this conclusion, it would follow that there has been no violation of the rule against perpetuities. However, we shall also consider the question of whether the option is personal so far as it pertains to the optionee, Roemhild. There is no language in the reservation stating that the option runs to the heirs or assignees of the optionee. The facts upon this issue are quite similar to the factual situation in Campbell v. Campbell, 313 Ky. 249, 230 S.W.2d 918. There, the proviso in the deed granting the option provided that if the grantee in the deed wanted to sell the land at any time the grantor was to have first preference. The Kentucky court, after considering and discussing a number of pertinent cases, concluded that the option granted was...