93 So. 631 | Ala. | 1922
The rule — stated in Hill v. Gray,
In this jurisdiction the creation of conditional estates, while recognized, is not favored; and it has been held here that the creation of a conditional estate by deed or devise will not be pronounced unless the "intent of the grantor to make a conditional estate is * * * clearly and unequivocally indicated." Zimmerman v. Daffin,
An owner in fee of real estate may convey an estate on condition. Code, § 3416, provides:
"Lands may be conveyed, within the limits fixed by law, so as to avoid perpetuities, and subject to such other restrictions as are imposed by this Code, for such terms as the owner thinks proper; and courts are enjoined to give effect in such cases to the intention and meaning of the parties."
In Gray v. Blanchard, 8 Pick. (Mass.) 284 — a deliverance approvingly quoted in Hitt Lumber Co. v. Cullman Coal Co., supra — it was said:
"Every proprietor of an estate has jus disponendi. He may grant it with or without condition; and if he grants it upon condition directly, the estate of the grantee will terminate with the breach of the condition, if the grantor chooses to avail himself of the forfeiture and enter for the breach."
To grants of valid conditional fees the rule against perpetuities does not apply to defeat or to avoid the right of entry of the grantor or devisor and his heirs for breach of condition, at however remote a time the breach may occur. Tobey v. Moore,
The "great consensus of authority, although without any consideration of the question involved, may perhaps be held to settle the law for the United States, and to create in this country an exception, arbitrary though it be, to the rule against perpetuities."
To like effect are his observations at sections 304 and 306. That author, in his notes to sections 306, 307, lists as within the category of his quoted statement Henry v. Etowah County,
This grantor, Winston, through the use of the phrase, in the granting clause "hath upon the conditions hereinafter mentioned," and through the further confirmatory phrase, as expressive of the grantee's covenant and agreement, that "this sale and conveyance shall hold good and valid only upon the compliance by the" grantee and "her lawful representatives with the following conditions" (italics supplied) conveyed to the grantee a conditional fee only, a defeasible estate, subject to divestiture upon breach of conditions. Carter v. Chaudron,
Consistent with the observations of Christiancy, J., in Mandlebaum v. McDonell,
While it is usual to introduce in deeds conveying conditional fees a provision for reverter for breach of condition subsequent upon which the grant or estate is made to depend, the introduction of any express terms to that effect is not essential to the creation or preservation of the right to accomplish divestiture of the estate so conditionally granted or to accomplish its reinvestment in the grantor or his heirs. 8 R. C. L. pp. 1119, 1120; Fowlkes v. Wagoner (Tenn.Ch.App.) 46 S.W. 586, 589; Ball v. Milliken,
The instrument not being a grant in unqualified fee, but a grant of an estate defeasible upon breach of condition subsequent defined therein, the condition in restraint of alienation is not offensive to the rule against the suspension of the power of alienation stated in Hill v. Gray,
It results that the decree below, affirming the validity of the condition restraining alienation except as permitted by the instrument, was well rendered.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur. *685