Windiate v. Lorman
| Decision Date | 08 December 1926 |
| Docket Number | June Term.,No. 38,38 |
| Citation | 211 N.W. 62,236 Mich. 531 |
| Parties | WINDIATE v. LORMAN (Leland Intervener). |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Oakland County, in Chancery; Frank L. Covert, Judge.
Bill for removal of option as cloud on title by John Windiate against Janette Lorman, in which Wilfred C. Leland intervened and prayed for specific performance of option. On death of plaintiff the suit was revived in the name of his administrator. Decree for intervener, and plaintiff administrator appeals. Affirmed.
Argued before the Entire Bench.
Patterson & Patterson, of Pontiac, for appellant.
Pelton & McGee, of Pontiac, for appellee Lorman.
A. L. Moore, of Pontiac, for intervening appellee.
John Windiate filed this bill. Later his death was suggested and the suit revived in the name of the administrator. The bill, alleging cloud on title, a recorded option, sought its removal. The option:
‘In consideration of one dollar, and other valuable considerations, the receipt of which is hereby acknowledged, I, John Windiate, of Pontiac, Michigan, agree with Janette Lorman, of West Bloomfield, that if I ever desire to sell, or if my heirs or devisees shall ever desire to sell, the lands hereinafter described, I will give to Janette Lorman, her heirs, devisees and assigns the first opportunity to buy the said land at the best price, not to exceed one thousand dollars ($1,000) which I can get for it from anyone else, plus the cost of any improvements put thereon; and upon payment or tender of such price by her, her heirs or assigns, to me, my heirs and devisees, that the land shall be conveyed to her, her heirs or assigns in fee simple; and, further, that so long as I own the same it shall be used for no other purpose than for the purpose of a private residence.
‘This agreement shall bind my heirs and devisees, and shall inure to the benefit of Janette Lorman, her heirs, devisees and assigns.
‘In witness whereof, I have hereto set my hand and seal this 15th day of July, A. D. 1910.
‘John Windiate.
‘Witnesses:
Mr. Leland, assignee of Mrs. Lorman, intervened, answered, and prayed relief, specific performance of the option, and he had decree, from which plaintiff has appealed.
That the option violates the rule against perpetuities. Appellant cites texts and decisions under the law of England and of many of the states. But as stated by Chaplin in the preface to his work on Suspension of the Power of Alienation:
‘New York abandoned the system embodied in this law, and instituted a system of her own, which, except in its application to personal property, has since been adopted in Michigan, Minnesota and Wisconsin.’
We quote 3 Comp. Laws 1915, §§ 11532, 11533:
‘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.’
‘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.’
Under our statute ‘such power of alienation is suspended when there are no persons in being by whom an absolute fee in possession can be conveyed.’ Passing the suggestion that the unaccepted option created no estate or interest in the land (Gustin v. School District, 94 Mich. 502, 54 N. W. 156,34 Am. St. Rep. 361), and the further suggestion that the option gave merely the right of first refusal and presented no obstacle to alienation by the optionor, we think that, tested by our statutory rule, the option is not offense, because at all times they were persons in being by whom an absolute fee in possession could have been conveyed.
Cases in point under this statute are Buck v. Walker, 115 Minn. 239, 132 N. W. 205, Ann. Cas. 1912D, 882, and Mineral Land Investment Co. v. Bishop Iron Co., 134 Minn. 412, 159 N. W. 966, L. R. A. 1917D, 900. We quote from the latter:
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Stenke v. Masland Development Co., Inc.
...is faulty for two reasons. First, while Windiate was originally decided by analysis of only the then-applicable statute, 236 Mich. 531, 534, 211 N.W. 62 (1926), on rehearing our Supreme Court also reviewed the case under the perspective of the common-law rule. The Court's rationale on rehea......
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Locklear v. Tucker
...67 Idaho 567, 189 P.2d 95; 48 C.J. 1002, sec. 97; In re Water Front on Upper New York Bay, 246 N.Y. 1, 157 N.E. 911; Windiate v. Lorman, 236 Mich. 531, 211 N.W. 62; Windiate v. Leland, 246 Mich. 659, 225 N.W. The rule against perpetuities and the statute prohibiting suspension of power of a......
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Windiate v. 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 admeasu......
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Lantis v. Cook
...in R.S.1846, ch. 62, §§ 14, 15, C.L.1948, §§ 554.14, 554.15, Stat.Ann. §§ 26.14, 26.15, repealed by the 1949 act. Windiate v. Lorman, 236 Mich. 531, 211 N.W. 62; Windiate v. Leland, 246 Mich. 659, 225 N.W. 620; Rodey v. Stotz, 280 Mich. 90, 273 N.W. 404; 2 Simes, Future Interests, § 576, p.......