Hardy Bros. v. Galloway

Shepherd, J.: Considered either as a conditional sale or a contract to reconvey, his Honor was entirely correct in holding as void for uncertainty the provision in the deed respecting the right of the grantor to repurchase the land when sold. No time is fixed for performance, nor is there any stipulation whatever as to the price to be paid. *523 The provision, not being a limitation, can therefore only-take effect, if at all, as a condition subsequent, and viewed in this light we cannot hesitate in deciding that the restriction upon alienation attempted to be imposed after the grant of the fee, is repugnant to the nature of the estate granted, contrary to the policy of the law, and therefore inoperative. Ever since the statute of Quia Emptores, the right of alienation has been considered as an inseparable incident to an estate in fee (Coke on' Lit., 436; Williams on R. P., 61, 62; 1 Washburn R. P., 79), and, except in some cases where the restriction is only partial, the law does not recognize or enforce any condition which would directly or indirectly limit or destroy such a privilege — iniquum est ingenuis hominibus non esse rerum suarum alienationem. Accordingly, it has been held by this Court that a condition that a devisee in fee shall not sell or encumber his land before attaining the age of thirty-five is void, “because it is inconsistent with the full and free enjoyment which the ownership of such an estate implies.” Twitty v. Camp, Phil. Eq., 61. To the same effect has it been ruled as to a condition that a devisee in fee shall make oath “that he will not make any change during his life” in the testator’s will respecting his property (Taylor v. Mason, 9 Wheat., 350), or that he shall not offer to mortgage or suffer a fine or recovery (Ware v. Cann, 10 Barn, and Cres., 433), or that he shall contract in writing not to alienate before the proceeds of certain realty are paid to him (Man dlebaum v. McDonnell, 29 Mich., 78), or that land devised to a number of persons shall not be divided. .Smith v. Clark, 10 Md., 186. Such conditions are not sustained where they “infringe upon the essential enjoyment and independent rights of •property, and tend manifestly to public inconvenience.” 4 Kent Com., 131; Bacon’s Abr., title, Conditions; Shep. Touchstone, 131. *524 “A condition annexed to an estate given is a divided clause from the grant, and therefore cannot frustrate the grant precedent, neither in anything expressednor anything implied, which is of its nature incident and inseparable from the thing granted.” Starkie v. Butler, Hob., 170. While unable to find any decision exactly in point, we feel assured that our case falls within the principle stated and illustrated by the foregoing authorities. The restriction'is certainly inconsistent with the ownership of the fee as well, it would seem, as against public policy. The right to repurchase is of indefinite extent as to time (it being reserved to the grantors, their heirs or assigns), and may be exercised whenever the property is sold, although no amount is fixed upon as purchase-money. In other words, we have an estate-in fee without the power to dispose of or encumber it, unless first offering it for no definite price to the grantors, their heirs or assigns. The condition is repugnant to the grant, and therefore void. Even if the right to repurchase could be sustained, the defendant has no cause of complaint, inasmuch as the Court in decreeing foreclosure has ordered that thirty days notice of the sale shall be personally served on him. The exception to the insufficiency of the description in the mortgage from Evans to the plaintiff is plainly untenable. Henley v. Wilson, 81 N. C., 405; Euliss v. McAdams, 108 N. C., 507, and the cases cited. Neither is there any merit in the other exception as to the refusal of the Court (considering-the admissions in the answer) to require the plaintiff to introduce the deed from Galloway to Evans. The judgment must be • Affirmed.