289 N.W. 791 | Neb. | 1940
This is an appeal from a decree of the district court for Jefferson county requiring the defendant to specifically perform the terms of a contract for the sale of real estate by accepting the title and paying the purchase price due by its terms.
The question to be decided arises out of the following
On December 23, 1932, Earnest Aekmann and wife mortg-aged the land to plaintiff for the sum of $3,500. The mortgage was subsequently foreclosed and the sale thereof to plaintiff confirmed. On February 16, 1939, plaintiff sold the land to the defendant for $4,000, in which contract plaintiff agreed to furnish an abstract of title showing a marketable title in the seller. The defendant refused to accept the title as marketable for the reason that the provision of the will through which plaintiff claims title restrains the devisee from selling, mortgaging or otherwise encumbering said lands and that the mortgage given to plaintiff was therefore void and of no force and effect. The question for determination, therefore, is the nature of the estate devised to Earnest Aekmann by the will of his father, and the effect of the restrictions against alienation with which the testator attempted to qualify it.
It is a fundamental rule when an estate in fee simple is devised that an attempt by the testator to prevent alienation is ineffective and void for the reason that it is repugnant to the estate devised. Yates v. Yates, 104 Neb. 678, 178 N. W. 262; Myers v. Myers, 109 Neb. 230, 190 N. W. 491. Therefore, if the estate taken by Earnest Aekmann under the will was in fee simple, the restrictions against alienation contained therein are void, and plaintiff has a marketable title.
We necessarily hold that Earnest Ackmann took a fee simple title absolute in the lands devised to him by the will of his father, Ferdinand Ackmann. Consequently, the restraints against alienation attempted in the devise are void. The trial court therefore correctly decreed that plaintiff was entitled to have its contract with the defendant specifically performed.
Affirmed.