Wakefield v. Van Tassell

• Court: Illinois Supreme Court
• Writing for the Court: RICKS
• Citation: Wakefield v. Van Tassell , 202 Ill. 41, 66 N.E. 830 (Ill. 1903)
• Decision Date: 18 February 1903
• Parties: WAKEFIELD et al. v. VAN TASSELL et al.

202 Ill. 41

66 N.E. 830

WAKEFIELD et al.

v.VAN TASSELL et al. ^*

Supreme Court of Illinois.

Feb. 18, 1903.

Appeal from Peoria county court; N. E. Worthington, Judge.

Ejectment by Robert W. Van Tassell and another against James E. Wakefield and another. From a judgment in favor of plaintiffs, defendants appeal. Affirmed.George B. Foster and Whitmore, Barnes & Boulware, for appellants.

Arthur Keithley, for appellees.

This is an appeal from a judgment of the circuit court of Peoria county in an action of ejectment for condition broken in a deed. The facts, briefly, show that in the year 1893 R. W. Van Tassell and wife, of the city of Peoria, in consideration of the sum of $850, conveyed to Adam J. Best, of the town of Princeville, in said county, by warranty deed, four town lots located in said town of Princeville, and along and near the Rock Island Railroad. The deed contained the following condition: ‘That no building shall ever be erected on all or any part of said land hereinafter described in which to handle grain; and, further, that no grain shall ever be handled on said land by the grantee herein, his grantee, administrator, executor, assigns, or lessee, or by any one holding by, through, or under him; and, if this agreement is broken, said land shall revert to and become the property of the grantors herein.’ This deed was duly acknowledged and recorded in the recorder's office of said county on the 29th day of June, 1893. Appellant Adam J. Best in the year 1901 conveyed an undivided one-half interest in the premises in question to James E. Wakefield, and the two together during that year built an elevator on said lots, and began handling grain thereon. Van Tassell made demand on appellants for possession for condition broken, which was refused. He then brought this suit, and, upon general issue being filed, the cause was tried by the court, by consent of parties, without a jury. At the conclusion of the evidence certain holding of law were offered by the respective parties, some of which were given and some refused. The court rendered judgment for the plaintiffs below, the appellees here, for possession of the property, and appellants prosecuted their appeal from that judgment to this court. The errors relied upon relate to the exclusion of evidence offered by appellants and refused by the court, and to the rulings of the court upon certain propositions of law offered by the respective parties, all of which are sufficiently covered by the assignments of error.

RICKS, J. (after stating the facts).

Appellants contend that the deed conveying the premises in question to Best operated as an absolute conveyance in fee, free from all restrictions or limitations whatever as to any future use to which the premises might be put, for the reasons that the condition in the deed was (1) contrary to public policy, and against public welfare; (2) that it violates the spirit of the rule of perpetuities; (3) that it is unreasonable; and (4) that it is inoperative by reason of the intervention of the doctrine of equitable estoppel.

The condition, as expressed in the deed, is plain and unambiguous, and needs not the aid of a court to construe its meaning. Parties have a right to make deeds, and insert therein such conditions as they see fit, and contracts entered into freely and voluntarily must be held sacred, and be enforced by the courts. As the parties make their deeds and contracts, so the courts must take them; and yet they must not be such contracts as are in contravention of the paramount principle of public good. So long as the beneficial enjoyment of an estate conveyed in fee simple is not materially impaired by restrictions and conditions contained in a deed, such restrictions and conditions as to the mode of its use are held valid. The enforcement of these conditions by the courts arises from the principle of law that every owner of the fee has the legal right to dispose of his estate, either absolutely or conditionally, or to regulate the manner in which the estate shall be used and occupied, as the grantor may deem best and proper. Just so long as the conditons and restrictions are not violative of the public good or subversive of the public interest, they will be enforced. It has been well said that public policy is a variable quality, but that it is only variable in so far as the habits, capacities, and opportunities of the public have become more varied and complex, and that the principles to be applied have always remained unchanged and unchangeable. ‘The relations of society become, from time to time, more complex. Statutes defining and declaring public and private rights multiply rapidly, and public policy often changes as the laws change, and therefore new applications of old principles are required.’ Davies v. Davies, 36 Ch. Div. 364. It is not the interest of the parties alone which is to be considered the true test, but in each particular case, under the facts, the judicial inquiry is, will the enforcement of the condition be inimical to the public interests? And so in Price v. Green, 16 Mees. & W. 346, a contract not to carry on the perfume businesswithin 600 miles of London was held void, the contract being one which the court deemed would be against public policy to enforce. Yet in the case of Nordenfelt v. Maxim, etc., Co. [1894] App. Cas. 535, where the patentee and manufacturer of guns and ammunition for war purposes transferred his patent to a company, and covenanted with the latter not to engage in that business for a term of 25 years, it was held that this condition was valid, and not against public policy, for the reason that, owing to the nature of that particular business, and the limited number of customers to whom sale might be made (being mainly to the governments of countries), the restraint imposed in that case was not larger than was necessary for the protection of the contractee, and not injurious to the public interest. In Brooks v. Cooper, 50 N. J. Eq. 761, 26 Atl. 978,21 L. R. A. 617, 35 Am. St. Rep. 793, it is said: ‘Whatever tends to injustice or oppression, restraint of liberty, restraint of legal right; whatever tends to the obstruction of justice, a violation of a statute, or the obstruction or perversion of the administration of the law; whatever tends to interfere with or control the administration of the law as to executive, legislative, or other official action,-whenever embodied in and made the subject of a contract, the contract is against public policy and therefore void, and not susceptible of enforcement.’ As, for instance, an agreement to withdraw an election petition in consideration of money was held void. Coppock v. Bower, 4 Mees. & W. 361. And so an agreement to obtain a pardon was held void. Kribben v. Haycraft, 26 Mo. 396. Likewise contracts for services known as ‘lobby services' (Trist v. Child, 21 Wall. 441, 22 L. Ed. 623), and a note executed in consideration of the payee agreeing to resign a public office in favor of the maker and using his influence to appoint the latter his successor (Meacham v. Dow, 32 Vt. 721) are void. And conditions in general restraint of marriage (Randall v. Marble, 69 Me. 310, 31 Am. Rep. 281), or general restraint of alienation (Reifsnyder v. Hunter, 19 Pa. 41), or the procuring of a nolle prosequi from the governor (Wildey v. Collier, 7 Md. 273, 61 Am. Dec. 346), or to prevent competition in bidding for government contracts (Gulick v. Ward, 10 L. J. Law, 87, 18 Am. Dec. 289), have been held void as opposed to public policy. But where the condition is made in good faith, and stipulates for nothing that is malum in se or malum prohibitum, before the court should determine the condition to be void, as contravening public policy, it should be satisfied that the advantage to accrue to the public for so holding is certain and substantial, and not theoretical and problematical. Kellogg v. Larkin, 3 Pin. 123, 56 Am. Dec. 164, 3 Chand. 133. So it has been universally held that conditions in deeds restraining the grantee from selling intoxicating liquors upon the premises are valid. Cowell v. Colorado Springs Co., 100 U. S. 55, 25 L. Ed. 547;Star Brewing Co. v. Primas, 163 Ill. 652, 45 N. E. 145. An agreement not to run a stage coach on a certain road has been held valid (Pierce v. Fuller, 8 Mass. 223, 5 Am. Dec. 102),...