88 N.C. App. 149 | N.C. Ct. App. | 1987
Plaintiffs sole question on appeal is “did the trial court commit reversible error by granting defendant’s motion for summary judgment and by denying plaintiff’s motion for summary judgment?” Both plaintiff and defendants agree summary judgment was appropriate pursuant to G.S. 1A-1, Rule 56(c), because there is no genuine issue as to any material fact. Plaintiff contends, however, the summary judgment should have been in her favor.
In this case, the grantor of real property attempted to retain a testamentary power of appointment. When Myrtle conveyed the tract of land to defendants, she undertook to keep a right to designate by will who would receive the property after her death.
Plaintiff admits in her brief that the language regarding the settlement in the deed from Myrtle to defendants “is a prohibited restraint upon alienation” and that the agreement by defendants “to refrain from conveying the property is void.” Any condition attached to the creation of an estate in fee simple which prevents the conveyee from alienating it for a period of time is void as a restraint on alienation. Crockett v. Savings & Loan Assoc., 289 N.C. 620, 224 S.E. 2d 580 (1976). A restraint on alienation is also against public policy. Trust Co. v. Construction Co., 3 N.C. App. 157, 164 S.E. 2d 519 (1968); Clayton v. Burch, 239 N.C. 386, 80 S.E. 2d 29 (1954). Only the restraint is invalid, however, and the grant normally stands. Id.
Here, plaintiff argues defendants should convey the property as required by the settlement agreement because the equitable
Plaintiff contends defendants were unjustly enriched by the conveyance simply because they received the property from Myrtle when she, Myrtle, clearly manifested her intention that plaintiff receive the property in question.
In order to invoke a constructive trust plaintiff must show that unjust enrichment is the result of fraud, a breach of duty, or some other circumstance making it inequitable for defendants to keep the property. Plaintiff cites Cline v. Cline, 297 N.C. 336, 343, 255 S.E. 2d 399, 404 (1979), for the proposition that “[wjhenever one obtains legal title to property in violation of a duty he owes to another who is equitably entitled to the land or an interest in it, a constructive trust immediately comes into being.”
There is nothing in this record to indicate that defendants had any legal duty to convey the property to the plaintiff. There is no evidence in this record of any fraud or wrongdoing upon the part of defendants with respect to the manner in which they acquired the property or their failure to convey it because of the void provision in their deed with respect to the settlement agreement. They have a legal right to refuse to convey the property because of the restraint on alienation, and this exercise of a legal right cannot amount to fraud. Walker v. Walker, 231 N.C. 54, 55 S.E. 2d 797 (1949).
The judgment appealed from is
Affirmed.
