Windiate v. Leland

• Decision Date: 03 June 1929
• Docket Number: No. 93,Jan. Term.,93
• Citation: 225 N.W. 620,246 Mich. 659
• Parties: WINDIATE v. LELAND et al.
• Court: Michigan Supreme Court

246 Mich. 659

225 N.W. 620

WINDIATE

v.LELAND et al.

No. 93, Jan. Term.

Supreme Court of Michigan.

June 3, 1929.

Appeal from Circuit Court, Oakland County, in Chancery; Frank L. Covert, Judge.

Suit by Elma Windiate against Wilfred C. Leland, Frank Tyack, Myrtle Tyack, William A. Windiate, administrator of the estate of John Windiate, deceased, and others, wherein certain defendants filed cross-bills. From a decree, the last three named defendants appeal. Modified, and, as modified, affirmed.

Argued before the Entire Bench. Patterson & Patterson, of Pontiac, for appellee Elma Windiate, and appellant William A. Windiate, administrator of the estate of John Windiate, deceased.

George A. Cram, of Pontiac (John R. Rood, of Detroit, of counsel), for Tyacks and others.

A. L. Moore, of Pontiac, for appellees Wilfred C. Leland and Blanche D. Leland.

FELLOWS, J.

This is a continuation of litigation concerning the option and land involved in Windiate v. Lorman, 236 Mich. 531, 211 N. W. 62. After the decision in that case, plaintiff, widow of John Windiate, filed this bill for the purpose of having her dower admeasured. She made all who had any apparent or real interest in the land parties. All of them concede she is entitled to the relief prayed, and all acquiesce in the amount decreed her. All the defendants save Henry Mitchell claim some or the entire interest in the premises outside of the dower interest and assert such claim by way of cross-bills. Some additional facts should be stated. April 4, 1908, John Windiate and his wife conveyed to their son William A. their farm, except the four acres involved in the former and present case. July 15, 1910, William A. sold to Janette Lorman the farm conveyed to him. She did not want to purchase it unless she could have an option on the four acres in case it came into the market, and the option set out in the former opinion was given. The four acres fronted on the lake, and were available for a boat livery and small resort grounds. For some time defendants Tyack rented it for that purpose. In 1920 they negotiated with John Windiate to purchase it, and on July 21, 1920, Tyack paid him $200 and took the following receipt:

$200.00.

Pontiac, Michigan, July 21, 1920.

‘Received from Frank Tyack, $200.00 to apply on the purchase price of lands at Silver Lake; payments to begin Nov. 1, 1920, price agreed upon $8000.00.

‘John Windiate.

‘Per L. M. Eaton.’

After the execution of this paper, the Tyacks commenced the erection of numerous small building on the premises. They were inexpensive and of flimsy material and construction. It is apparent that Mr. Windiate had forgotten the execution of the option, and it was not recalled to his mind until he procured an abstract of the premises. While there is a dispute in the testimony, we are satisfied that it was orally agreed between Windiate and the Tyacks that Windiate should perfect the title if possible and convey it to the Tyacks for the consideration named in the receipt, but that, on failure in such effort, the payment made should apply on the rent. The bill which was before us in the former case was filed in 1920, but the case was considerably delayed, and did not reach this court until the June term, 1926. In the meantime the Tyacks continued in possession without further payments.

The Tyacks were not parties to the former case, and are not bound by that decree. Their counsel, with such earnestness in brief and oral argument as leaves no doubt of their fixed conviction that we erroneously decided the question of restraint on alienation, ask us to reconsider that question. We have spent much time in so doing. After such examination we are satisfied with the conclusion reached and the reason stated therefor. We shall, however, in view of the fullness of discussion by counsel, consider the subject a little more at length.

We pointed out in the former opinion that this state did not follow the common law. We took our statutory provision from New York, and we have quite uniformly followed the New York decisions in construing it. We quote sections 11532 and 11533, C. L. 1915:

‘(11532). Every future estate shall be void in its creation, which shall suspend the absolute power of alienation for a longer period than is prescribed in this chapter; such power of alienation is suspended when there are no persons in being, by whom an absolute fee in possession can be conveyed.’

‘(11533). The absolute power of alienation shall not be suspended by any limitation or condition whatever, for a longer period than during the continuance of two lives in being at the creation of the estate, except in the single case mentioned in the next section.’

Inasmuch as we do not follow the common law on the subject, it will not be necessary for us to take up the many English and American cases cited to us by counsel dealing with the common-law rule. In some of the cases, as reason for applying the rule, it is pointed out that there are no persons in being who could by joining convey a good title. Thus in Winsor v. Mills, 157 Mass. 362, 32 N. E. 352, while declining to follow the suggestion, it was said:

‘It has sometimes been suggested as a reason for the rule against perpetuities, that it is impossible for the owners of the estate to convey it, and that the estate is rendered inalienable ‘though all mankind should join in the conveyance.’'

The views of the New York court are tersely stated in Williams v. Montgomery, 148 N. Y. 519, 43 N. E. 57, where it was said:

‘The ownership is absolute whether the power to sell resides in one individual or in several. If there is a present right to dispose of the entire interest, even if its exercise depends upon the consent of many persons, there is no unlawful suspension of the power of alienation. The ownership, although divided, continues absolute.

‘The agreement in question, therefore, which expressly reserved the right to sell by mutual consent, did not violate the statute, because there was no time, when an absolute title to the stock, or any part of it, could not have been transferred by the joint action of the four parties to the contract.’

The language of Mr. Justice Champlin, speaking for the court in Case v. Green, 78 Mich. 542, 44 N. W. 579, follows this. He said:

‘It follows that William Case, the owner of the fee or legal title, Hiram S. and Rebecca, the owners of the life-estate in possession, and Adelbert, the owner of the remainder, could be uniting in a deed, or by separate deeds, convey an absolute fee in possession. Upon William's death, the same persons, with Jennie Rice, could have done so. After Jennie conveyed to Hiram S., he and Adelbert could have done so. Hence there has been no time but what there were persons in being by whom an absolute fee in possession could be conveyed, and consequently the instrument is not a restraint upon the absolute power of alienation, or prohibited by How. Stat. §§ 5530, 5531.’

See, also, Torpy v. Betts, 123 Mich. 239, 81 N. W. 1094; FitzGerald v. City of Big Rapids, 123 Mich. 281, 82 N. W. 56;Blakeman v. Miller, 136 Cal. 138, 68 P. 587,89 Am. St. Rep. 120.

Nor are we able to construe the language of the option as written as a restraint of alienation. Mr. Windiate could have sold the land the second after he signed the option. True be should have given Janette Lorman the first chance to buy, but, upon notice being given to her, she would either buy, thereby consummating a sale, or she would refuse, thereby confirming his right to sell to any one he chose to. The alienation of the property was not tied up as matter of law for a second's time.

Janette Lorman held an option. It did not before acceptance convey to her any interest in the premises. This is settled by our own holding, by text- writers, and by the decisions of other courts. In Gustin v. School District, 94 Mich. 502, 54 N. W. 156,34 Am. St. Rep. 361, it was held (quoting from the syllabus):

‘Many of the adjudicated cases upon what are termed ‘options' for the purchase of land have arisen upon unilateral contracts, which do not vest any...