Stone v. Easter

Opinion by LOGSDON, O. Plaintiff in error has made no effort in her brief to comply with Rule 26 of this court in reference to specifications of errors and this *70 appeal might justifiably be dismissed for that reason. Notwithstanding the additional work thus entailed the brief and ease-made have been carefully read in their entirety out of abundance of caution that nothing- favorable to plaintiff should be overlooked. In the absence of specifications of erról-as requiied by the rules of this court, the examination made of the brief and case-made suggests that plaintiff’s contentions may be comprehended under the single proposition: That the trial court erred in overruling the motion of plaintiff for a new trial herein. This brings under review the entire record of the trial, and in order of sequence the first question to be determined is whether defendant’s special plea of estoppel is legally sufficient and reasonably sustained by the evidence. Plaintiff’s sole reliance on the trial was the clause in her deed from her father which purported to restrain her right of alienation until she attained the age of 40 years. This deed was an ordinary warranty deed in statutory form, but following the covenants of warranty this clause was inserted: “Except provided, that said second party shall not sell, transfer or alienate said premises until she had attained the age of forty (40) years.” Defendant pleaded as an estoppel, substantially, that on September 15, 19-13, plaintiff and her husband mortgaged the premises to the Pittsburg Mortgage Investment Company for the sum of $1,800, and that said mortgage was foreclosed by the assignee thereof, after default, by judgment of the district court of Washita county, entered on March 4, 1916; that said purported Restraint on alienation in plaintiff’s deed was pleaded as a defense in said foreclosure action and was fully adjudicated; that after-judgment in said foreclosure action this defendant purchased said premises from this plaintiff, paying her therefor the sum of $6,500, represented by the amount of said judgment, taxes, and costs in the sum of $2,530.53, evidenced by a cashier’s check for that amount, and other cashier’s checks in various amounts, all amounting to the total of the purchase price and that by reason of having received and retained said $6,500 this plaintiff is now estopped to assert any claim to said premises adverse to defendant. ¡Some question is raised here as to the sufficiency of service on plaintiff in the foreclosure action to support that judgment upon the question of former adjudication, so a determination of the validity of the restraining clause in the deed may eliminate the-other question from consideration. This restraining clause in the deed involves a consideration of certain statutory provisions. Section 8401, Comp. -Stat. 2-921 (Rev. Laws 1910, sec. 6596), provides: “Estates in real property, in respect to the duration of their enjoyment are either; Eirst. Estates of inheritance, or perpetual estates. -Second. Estates for life. Third. Estates for years; or, Fourth. Estates at will.” Section 8402, Comp. Stat. 1921 (Rev. Laws 1910, sec. 6597), defines an estate of inheritance thus: “Every estate of inheritance is a fee, and every such estate, when not defeasible bi-conditional, is a fee-simple1 or an absolute fee.” So much of section 5259, Comp. Stat. 1921 (Rev. Laws 1910, sec. 1162), asi is necessary to be considered in this connection reads as follow»: “A warranty deed made in substantial compliance with the provisions of this chapter shall convey to the grantee, his heirs or assigns, the whole interest of the grant- or in the premises described, and shall be deemed a covenant on the part of the grantor that at the time of making the deed he is -legally seized of an indefeasible estate in fee simple of the premises,” etc. By the deed in question the grantor conveyed to the plaintiff his “whole interest” in the premises, and that interest was “an indefeasible estate in fee simple.” There are no apt words in- the deed making the estate conveyed either defeasible or conditional, therefore plaintiff took an absolute fee. Can a grantor of an absolute fee restrain its alienation in the hands of the grantee? This could not be done at common law. A fee simple estate and a restraint on alienation could not coexist because wholly incompatible. “One person cannot own the fee, and another person the right of alienation.” In this country the common law rule is generally followed, though some authorities recognize a distinction between an unqualified restraint on alienation and a restraint for a limited time. But it seems difficult ' to define the limits within which a restraint on alienation is valid and beyond which it becomes void. If such a provision is held to be reasonable and valid for a five-year period, what new consideration of expediency or public policy imparts invalidity to it during the next 12 months or the next five years? The rules for the interpretation of con *71 tracts apply likewise to the interpretation •of deeds. Joiner et al. v. Ardmore Loan & Trust Co., 33 Okla. 266, 124 Pac. 1073. Section 5053, Comp. Stat. 1921, provides: “Particular clauses of a contract are subordinate to its general intent.” (Section 5056 provides: “Words in a contract which are wholly inconsistent with its nature, or with the main intention of the parties, are to be rejected.” There can ne no question in this case but that it was the intention of the grantor in the deed in question to not only vest in his daughter the beneficial interest in this property, tout that she should have full legal and equitable title as well — an estate of inheritance. This intention being clearly manifested toy the language of the conveyance, the clause in restraint of alienation is subordinate to such intent, and, being wholly inconsistent with the intention to convey the fee, must toe rejected. Potter v. Couch 141 U. S. 296; Greene v. Greene (N. Y.) 26 N. E. 739; Jones v. Port Huron Engine & Thresher Co. (Ill.) 49 N. E. 700; Re Schilling (Mich.) 61 N. W. 62; Anderson v. Cary, 36 Ohio St. 506; Clark v. Clark (Md.) 58 Atl. 24; Zillmer v. Landguth (Wis.) 69 N. W. 568; Winson v. Mills (Mass.) 32 N. E. 352; Mouse v. Blood (Minn.) 71 N. W. 682; Fowler v. Duhue (Ind.) 42 N. E. 623; Pritchard v. Bailey (N. C.) 18 S. E. 668; Seay v. Coekrell (Tex.) 115 S. W. 1160; Deepwater Railway Co. v. Honaker (W. Va.) 27 L. R. A. (N. S.) 388; Lawrence v. Singleton (Tenn.) 17 S. W. 265; Miller v. Denny (Ky.) 34 S. W. 1079. The provision in restraint of alienation being inoperative, the inquiry reverts to defendant’s plea of estoppel and the sufficiency of the evidence in support thereof. It is shown by the record without contradiction that judgment of foreclosure was rendered in the district court of Washita county against plaintiff and in favor of the as-signee of Pittsburg Mortgage Investment Company March 4, 1916; that on March 1, 1916, plaintiff executed a deed to the premises in favor of defendant for a stated consideration of $6,500, and that this deed was filed for record March 4, 1916; that on the same date shown by his deed defendant had four cashier’s cheeks' issued payable to plaintiff, Laura B. Stone, as follows: one for $200, which was paid March 6; one for $3,200, which was paid March 6; one for $60.25, which was paid March 11; one for $334.22, which was paid March 20. Each of these bears the endorsement of plaintiff. On the same date defendant had issued three other cashier’s checks payable to A. M. Beets, plaintiff’s attorney in the foreclosure case, as follows: one for $2,-530.53, which was paid March 9th; one for $150 and one for $25, which were paid March 9th and 10th respectively. The following facts are testified to by defendant, R. M. Easter; by J. F. Bolding, the banker, and toy A. M. Beets, plaintiff’s attorney in the foreclosure case — plaintiff denies them or says she doesn’t know — viz.: That all the parties met at the bank about 7 p. m., March 1st, following prior negotiations between plaintiff and defendant for purchase of the property by defendant and payment of the mortgage indebtedness; that at this meeting A. Ml Beets, Plaintiff’s attorney, explained that the judment in the foreclosure action, whichever way it went, would remove all doubt as to the title to the premises; that thereupon the deed was executed and the cashier’s cheeks issued in payment, all being placed in the hands of A. M. Beets to be held until the judgment in the foreclosure action was entered ; if foreclosure was decreed they were to be delivered, otherwise to be returned to their respective makers; that the deed and cheeks were delivered March. 4, after the judgment was entered; that the cheek for $2,530.53, payable to A. M. Beets, was to satisfy the judgment and costs in the mortgage foreclosure and" to pay taxes, and was used for these purposes; that the check for $150 to Beets was for attorney fee, and the $25 check to Beets was for expenses he had incurred in representing the plaintiff; that the other checks to the total amount of $3,794.47 were delivered to plaintiff; that the indorsements on these cheeks .purporting to be the signature of the plaintiff, Laura B. Stone, are in fact her signature. It is a fair inference from all the testimony in, the record that plaintiff suffered and permitted her husband, George W. Stone, to appropriate and asbcond with the proceeds of this sale of her land, but this cannot militate against the sufficiency of the evidence to suport defendant’s plea of estoppel. It is therefore concluded that defendant’s special plea of estoppel is legally sufficient and is reasonably sustained toy the evidence. This conclusion renders it unnecessary to consider further the record of the trial in this case. *72 . The judgment of the trial court should be in all things affirmed. By the Court: It is so ordered.