153 Ga. 870 | Ga. | 1922
(After stating the foregoing facts.)
In the ease of Barton v. Thaw, 246 Pa. 348 (92 Atl. 312, Ann. Cas. 1916D, 570), the written instrument under consideration was a deed by which the grantor conveyed the coal and other minerals underlying certain lands to two named grantees, but subsequently conveyed the same to a third person. Both deeds contained the following clause: “ And in case the said parties of the second part, their heirs or assigns, should at any future time whatsoever desire to purchase any of said land in fee simple, then the said parties of the first part, for themselves, their heirs or assigns, hereby covenant and agree to sell and convey the same to the said parties of the second part, their heirs or assigns, at a price not exceeding one hundred dollars per acre.” The judge before whom the case involving the construction of this paper was tried filed an opinion, which was in part as follows: “ It is conceded by counsel that the case presents for the first time to the courts of Pennsylvania the question whether an option or right to purchase land, unlimited iii point of time, violates the rule against perpetuities, and therefore is void and inoperative as against the land. As commonly understood, although not technically exact, a perpetuity is something which may last forever, and the rule against perpetuities is a rule that prevents certain existing conditions from continuing for an indefinite period.” And the court held that the option here given was void, and supported the holding in a lengthy opinion. Upon appeal the Supreme Court, in affirming the judgment of the court below, said: “ The case turns very largely upon the character of the interest in the surface which the optionees took under the covenant. If it was a present, fixed, and vested interest in the land, the rule against perpetuities would have no application. But is a mere option to purchase land, unlimited as to time and indefinite in duration, which may be exercised in 10 years, or in 100 years, or in 1,000 years, or which may never be exercised at all, depending upon the wish or pleasure of the optionee, a present vested interest? To ask this question
What is said above, though all the assignments of error in the main bill and cross-bill are not there dealt with, disposes of the controlling questions raised in the record.
Judgment reversed on the main bill of exceptions and on the cross-bill.