58 Iowa 205 | Iowa | 1882
I. The plaintiffs recovered a judgment against the Des Moines, Indianola & Missouri Eailroad Company, and caused the Chicago, Eock Island & Pacific Eailroad Company to be garnisheed as the debtor of defendant. The garnishee answered, denying indebtedness to defendant, and showing that it has in its possession, and under its control the railroad owned by defendant, which it operates under a lease for the term of nine hundred-and ninety-nine years; that, by the terms of the lease, the garnishee is bound in payment of rent, to apply thirty per centum of the gross earnings of the road in payment of the annual
The answer of the garnishee was denied by the plaintiffs, and the issues thus raised were submitted to a jury and a verdict was rendered for plaintiffs.
“ Every disposition of property is void which suspends the absolute power of controlling the same for a longer period than during the lives of persons then in being and for twenty-one years thereafter.”
This is the provision made in this State against perpetuities. It is not essentially different from that which has long been the law in England, and which originated out of regard to the welfare of future generations by promoting the circulation of the property of the kingdom, and to control the desire of individuals to keep up their name and memory by perpetual entails. “In England, any limitation tending to take the subject of it out of commerce for a longer period than a life or lives in being, and twenty-one years beyond, and in case of a posthumous child, a few months more, allowing for the time of gestation,” is a perpetuity. Randall on Perpetuities, 48. In this State the time is limited to the lives of persons in being and twenty-one years thereafter. >
In construing the section of the statute under consideration, the court below must have thought the suspension of the power of control had -reference .to the grantor, disposer,
The object of the statute is to prevent property from being taken out of commerce,, and prevent it from being held without the power of alienation beyond the prescribed period. A perpetuity is said to be “ such a limitation of property as renders it unalienable beyond the period allowed by law.” Bouvier’s Law Dict., Vol. 2, 326. In Kattergood v. Edge, 1 Salk, 229, a perpetuity is defined to be an estate “ unalienable though all mankind joined in the conveyance.” In Washburne v. Downes, 1 Cha. Ca., 23, it is is said “ a perpetuity is where if all that have interest join, yet they cannot bar or pass the title.” Applying these rules to the lease in question, it is very clear that it is not within the statute prohibiting perpetuities. There is no provision of the lease which precludes the lessor from disposing of the fee title to the property, and the lessee is in no manner limited or hindered from selling and assigning the lease, and, by uniting in a conveyance, the lessor and lessee may freely and without restraint convey both the fee and the leasehold interest.
In our opinion the court erred in holding that the lease is void upon its face as being prohibited by law.
Reversed.