HALL et al. v. CROCKER
Jackson, April Term, 1951
Opinion filed June 16, 1951
Rehearing denied July 27, 1951
506 Tenn. 192
PEELER & HOLLIS, of Camden, for appellee.
This is a suit to construe a deed and have the rights of the complainants declared therein. The bill was demurred to for want of equity on its face; because under the provisions of the deеd these provisions are repugnant to a fee simple estate and are ineffective, invalid and void; because under the provisions of the deed in question they are in restraint of and a restriction on alienation of the land conveyed; because under the terms of the deed they are so uncertain as to render it ineffective, invalid and void and becаuse the complainants have no right, title, claim or interest in the land described in the bill. The Chancellor sustained the demurrer as a whole and the complainants have seasonably аppealed to this Court and assigned errors.
The pertinent portions of the deed which is exhibited to the bill of complaint is: “That I, W. L. Morris, have this day bargained and sold and do hereby transfer and convey to Mrs. Leehentz Bowles, her heirs and assigns forever, for the consideration of Love and Affection Dollars paid and secured to be paid as follows” (Then follows the dеscription of the land conveyed. Immediately after the description of the land the following paragraph follows without any punctuation whatsoever.)
“It is hereby expressly agrеed and understood that should the said Leehentz Bowles desire to sell this land or should she die then the said W. L. Morris or his legal
representatives shall have the exclusive right to buy the same at the actual cost of improvements on said land should he so desire.” “To have and to hold to the said Leehentz Bowles her heirs and assigns forever.”
Then follows the usual covenants of seizin. The deed was signed and acknowledged and recorded on the same day that it bears date.
The bill alleges that Mrs. Bowles has very recently died and that the complainants are the heirs at law of W. L. Morris and that they have a right to purchase this property at the “actual cost of improvements” as provided in the terms of the deed above quoted. They allege that they have made investigation and find that the “actual cost of improvements” is $1100.00 and that it is to their advantage to pay this for the land. They pray for a receiver and accоunting since the death of Mrs. Bowles and that they be allowed the rents, etc., since that time upon their payment of the amount of the “actual costs of the improvements” on the property.
We in this State disregard the technical rules of common law as to formal parts of a deed and examine the deed in all its parts to ascertain the grantor‘s intention, so thаt the estate conveyed may be enlarged or lessened in the habendum clause. McCord v. Ransom, 185 Tenn. 677, 207 S. W. (2d) 581. This case is the last expression on the questions raised by the demurrer. The case distinguishes a number of thе other cases cited by the appellees in support of their various grounds of demurrer.
The deed here in question is a general warranty deed and an effective conveyance of the property in question unless the clause quoted immediately before
For a rather complete academic discussion of the subject see Restatement of the Law, Property, Sections 370-403 and especially Section 394 which is found at page 2322 of the Volume in question. The most extensive and satisfactory discussion which we have found upon the rule against perpetuities where an option is retained is Barton v. Thaw, 246 Pa. 348, 92 A. 312, Ann. Cas. 1916D, 570.
If the option in question had stopped with an option tо buy when it was said that the said “Bowles desire to sell this land” then unquestionably this option would have been violative of the rule against perpetuities and void because she might desire at any time to sell it and yet she or her heirs might never desire to sell it.
For the reasons assigned the case must be reversed and remanded for further proceedings consistent with this opinion.
All concur.
ON PETITION TO REHEAR.
A courteous, respectful and dignified petition to rehear has been filed herein. This petition again calls our attention to the question, and said to be the only question, raised by the demurrer to the bill of complaint which was
Frankly we felt that by the opinion it was made known to the parties that we did not consider the clause quoted in the original opinion as such a restraint upon the alienation of the property as to be void. We cannot see why parties to this deed did not have the right to enter into an option to repurchase this property so long as this оption did not violate the rule against perpetuities. We do not think that it can be questioned that the parties independently of the deed could have entered into a binding optiоn to repurchase this property so long as the option did not violate the rule against perpetuities. The reason for the application in some cases of the rule that a restraint on the alienation in a deed is void is because that when such a restraint is placed in the conveyance that then this prohibits the parties from selling or transferring the рroperty as they see fit. The rule holding that a restraint on alienation is thus void is very close akin to the rule against perpetuities. The two may be considered somewhat in the same light. Sinсe parties may enter into an option, so long as it does not violate the rule against perpetuities, then we see no reason why such an option might not be placed in а deed conveying the property. If at the time such option may be executed the parties who have the option to purchase do not wish to purchase under the terms оf the option then of course the grantee in the deed has the perfect right to convey the property as they see fit. If such an option was inde-
The bill in this cause prayed for a declaration of the rights of the parties. It was for this reason that we set forth in the original opinion the rights of the parties. For the reasons above stated the petition to rehear must be denied.