White v. White

• Citation: 150 S.E. 531,108 W.Va. 128
• Decision Date: 12 November 1929
• Docket Number: 6498.
• Parties: WHITE v. WHITE et al.
• Court: West Virginia Supreme Court

150 S.E. 531

108 W.Va. 128

WHITE v. WHITE et al.

No. 6498.

Supreme Court of Appeals of West Virginia.

November 12, 1929

Submitted October 22, 1929.

Syllabus by the Court.

A restriction in a deed conveying a fee-simple estate providing that the property embraced "shall not be conveyed demised, devised, leased or rented to any person of Ethiopian race or descent for a period of fifty years," is void as incompatible with the estate granted.

(Additional Syllabus by Editorial Staff.)

The term "Ethiopian," as used in deed prohibiting transfer or lease to person of Ethiopian race or descent will be deemed to have been used in its popular sense and to include negroes, though in strictest sense a negro is not an Ethiopian.

Appeal from Circuit Court, Cabell County.

Suit by H. B. White against Lewis White and others. From an adverse decree, defendants appeal. Reversed and rendered.

Leftwich & Meadows, of Huntington, and T. G. Nutter, of Charleston for appellants.

George S. Wallace, of Huntington, for appellee.

MAXWELL, J.

This appeal involves the construction of the following provision in a deed conveying a fee-simple estate: "And the said party of the second part hereby covenants with the said parties of the first part that the property hereby conveyed shall not be conveyed, demised, devised, leased or rented to any person of Ethiopian race or descent for a period of fifty years from the date hereof. ***" The deed contains no condition or limitation in event of breach of the said covenant. The same provision was contained in each of several deeds made by Anna E. Jones and others for eleven lots constituting block No. 5 of the Jones and Rau addition to the city of Huntington. Deed for lot No. 4 was made to W. W Warden, who thereafter conveyed it to E. B. Honaker, who, together with his wife, Ethel B. Honaker, later made conveyance of the said lot by deed dated November 1, 1926, to Lewis White and Cora White, his wife, who are colored people. The plaintiff is the owner of lot No. 6, which, it appears from the record, he has owned since some time in 1926, the exact date not appearing. The plaintiff and the defendants, Lewis White and Cora White, occupy their respective lots for residential purposes.

By his bill, the plaintiff prays, inter alia, that the said deed from Honaker and wife to White and wife be held invalid and void, that the said grantees be enjoined from renting or leasing the said property, and for general relief. Upon final hearing the circuit court declared said deed to be null and void, and further decreed "that the defendants E. B. Honaker and Ethel B. Honaker be and they are restrained and enjoined from conveying, demising, devising, leasing or renting the said Lot Four as shown on the revised map of Block Five Jones and Rau Addition contrary to the provisions of the said restriction set out in the plaintiff's bill and that the said Lewis and Cora White are enjoined from taking or attempting to take title to the said premises and from renting or leasing the same contrary to the provisions of the said restriction."

In the strictest sense a negro is not an Ethiopian, though both are Africans. In popular parlance the distinction is not observed and the American negro is frequently referred to as an Ethiopian--a fact in no wise to the discredit of the negro, as Ethiopian civilization, culture, and accomplishment are recorded from early historic periods. The prominent place of the Ethiopian in early civilization appears in both sacred and secular chronicle. The term "Ethiopian" as used in the deed will be deemed to have been used in its popular sense and to include negroes.

It is to be noted that the above-quoted provision of the deed made by Jones and Rau embraces a restriction upon alienation and is not a mere restriction of use of the property conveyed. It was urged in oral argument that the words "leased or rented" imply occupancy by the lessee. This is a non sequitur. It frequently happens that a lessee does not himself occupy the leased premises. If not prevented by the terms of the lease, he may assign the same or sublet the premises. We are therefore not called upon to consider the validity of a restriction or limitation of use of property imposed by deed conveying the same. Reasonable limitations of use are generally upheld. 18 Corpus Juris, p. 361; 8 Ruling Case Law, 1115; Minor on Real Property, § 562; Los Angeles Investment Co. v. Gary, 181 Cal. 680, 186 P. 596, 9 A.L.R. 115; Parmalee v. Morris, 218 Mich. 625, 188 N.W. 330, 38 A.L.R. 1180. Such restrictions usually appear in the form of covenants not to do particular things, and such covenants are ordinarily enforced in equity; Robinson v. Edgell, 57 W.Va. 157, 49 S.E. 1027. Reasonable restrictions on use violate no principle lying at the base of untrammeled alienability of property. But we must meet here the question of the right of a grantor of a fee-simple estate to impose restrictions on alienation by his grantee and those claiming under him.

Conditions or restrictions completely destroying the right to alien property, even for a limited time, are, we believe, held void by all the courts as inconsistent with complete ownership; as, for example, a grant or devise of land to A with condition that he shall not alien the same for ten years. 18 Corpus Juris, p. 361; 8 Ruling Case Law, 1114; Devlin on Real Estate, § 965; Latimer v. Waddell, 119 N.C. 370, 26 S.E. 112, 3 L.R.A. (N. S.) 668 and note; Totten v. C. & C. Co., 67 W.Va. 639, 643, 68 S.E. 373, and many cases there cited, among which is Potter v. Couch, 141 U.S. 296, 11 S.Ct. 1005, 1010, 35 L.Ed. 721, which is there quoted from as follows: "The right of alienation is an inherent and inseparable quality of an estate in fee-simple. In a devise of land in fee-simple, therefore, a condition against all alienation is void, because repugnant to the estate devised." But on the question of partial restraints of alienation the cases are hopelessly in conflict.

There is quite an array of cases holding that limited restraints on alienation are valid; that is reasonable limitations applying only to a particular person or class of persons, or for a limited time. This line of decisions is recognized by numerous texts and with varying comment. 18 Corpus Juris, p. 361; 8 Ruling Case Law, 1114; 2 Minor's Institutes, p. 250; Devlin on Real Estate, § 955. Chancellor Kent thus comments on the subject: "Fee Simple is a pure inheritance, clear of any qualification or condition, and it gives a right of succession to all the heirs generally, under the restriction that they must be of the blood of the first purchaser, and of the blood of the person last seized. It is an estate of perpetuity, and confers an unlimited power of alienation, and no person is capable of having a greater estate or interest in land. Every restraint upon alienation is inconsistent with the nature of a fee simple; and if a partial restraint be annexed to a fee, as a condition not to alien for a limited time, or not to a particular person, it ceases to be a fee simple, and becomes a fee subject to a condition." 4 Kent's Commentaries 5. The distinguished authority further says, at page 132: "If, however, a restraint upon alienation be confined to an individual named, to whom the grant is not to be made, it is said by very high authority (referring to Coke on Littleton, § 361) to be a valid condition. But this case falls within the general principle, and it may be very questionable whether such a condition would be good at this day." The section of Littleton referred to reads: "But if the condition be that the feoffee shall not alien to such an one, naming his name, or to any of his heirs, or of the issues of such an one, or the like, which conditions do not take away all power of alienation from the feoffee, & c., such condition is good." In Ruling Case Law, supra, this summary is contained: "On principle and authority, the better rule is that a direct restriction for any time, however short, is void."

In 3 Tiffany on Real Property (2d Ed.) § 592, the author says "But a condition directed at a transfer to a particular person or persons has been regarded as not so substantially interfering with the freedom of alienation as to be within the general rule." In 1 Minor on Real Property (2d Ed.) § 555, we find: "It is frequently said that a reasonable restraint on alienation is valid. *** If the condition merely excludes certain designated persons it is good. But if the condition excludes all except certain specified persons it is bad. Thus the distinction turns on the degree of restraint. *** There are cases which go beyond upholding conditions in restraint of alienation merely to a few designated persons. According to these decisions the restraint may be extended to certain designated races, without rendering the condition void. *** Other cases, however, hold all conditions in restraint of alienation to a large class such as one comprising a whole race (for example, conditions against alienation to Chinese, negroes, etc.) void as contrary to public policy, though they be limited in time." In Prof. John Chapman Gray's learned treatise on Restraints on the Alienation of Property (2d Ed.), the author says in section 41: "The authorities it will be seen are in hopeless conflict. The rule which naturally suggests itself is that a condition is good if it allows of alienation to all the world with the exception of selected individuals or classes; but is bad if it allows of alienation only to selected individuals or classes. *** Perhaps this rule might be difficult of application, or easily evaded." The impracticability of such distinction is apparent, as the condemnation imposed by his second proposition can be avoided and the approval of his...