delivered the opinion of the court:
Appellants contend that the deed conveying the premises in question to Best operated as an absolute' conveyance in fee, free from all restrictions or limitations whatever as to any future use to which the premises might be put, for the reasons that the condition in the deed was (1) contrary to public policy and against public welfare; (2) that it violates the spirit of the rule of perpetuities; (3) that it is unreasonable; and (4) that it is inoperative by reason of the intervention of the doctrine of equitable estoppel.
The condition as expressed in the deed is plain and unambiguous and needs not the aid of a court to construe its meaning. Parties have a right to make deeds and in-, sert therein such conditions as they see fit, and contracts entered into freely and voluntarily must be held sacred and be enforced by the courts. As the parties make their deeds and contracts so the courts must take them; and yet they must not be such contracts as are in contravention of the paramount principle of public good. So long as the beneficial enjoyment of an estate conveyed in fee simple is not materially impaired by restrictions and conditions contained in a deed, such restrictions and conditions, as to the mode of its use, are held valid. The enforcement of these' conditions by the courts arises from the principle of law that every owner of the fee has the leg'al right to dispose of his estate either absolutely or conditionally, or to regulate the manner in which the estate shall be used and occupied, as the grantor may deem best and proper. Just so long as the conditions and restrictions are not violative of the public good or subversive of the public interests they will be enforced.
It has been well said that public policy is a variable quality, but that it is only variable in so far as the habits, capacities and opportunities of the public have become more varied and complex, and that the principles to be applied have always remained unchanged and unchangeable. “The relations of society become, from time to time, more complex. Statutes defining and declaring public and private rights multiply rapidly, and public policy often changes as the laws change, and therefore new applications of old principles are required.” (Davies v. Davies, L. R. 36 Ch. Div. 364.) It is not the interest of the parties alone which is to be considered the true test, but in each particular case, under the facts, the judicial inquiry is, will the enforcement of the condition be inimical to the public interests; and so in Price v. Green, 16 M. & W. 346, a contract not to carry on the perfume business within six hundred miles of London was held void, the contract being one which the court deemed would be against public policy to enforce; yet in the case of Nordenfelt v. Maxim, etc. Co. L. R. (1894) App. Cas. 535, where the patentee and manufacturer of guns and ammunition for war purposes transferred his patent to a company and covenanted with the latter not to engage in that business for a term of twenty-five years, it was held that this condition was valid and not against public policy, for the reason that, owing to the nature of that particular business and the limited number of customers to whom sale might be made, (being mainly to the governments of countries,) the restraint imposed in that case was not larger than was necessary for the protection of the contractee and not injurious to the public interest. In Brooks v. Cooper, 50 N. J. Eq. 761, it is said: “Whatever tends to injustice or oppression, restraint of liberty, restraint of legal right; Whatever tends to the obstruction of justice, a violation of a statute or the obstruction or perversion of the administration of the law; whatever tends to interfere with or control the administration of the law as to executive, legislative or other official action, whenever embodied in and made the subject of a contract, the contract is against public policy and therefore void, and not susceptible of enforcement,” — as, for instance, an agreement to withdraw an election petition in consideration of money was held void. (Coppock v. Bower, 4 M. & W. 361.) And so an agreement to obtain a pardon was held void. (Kribben v. Hayoraft,
In People v. Chicago Gas Trust Co.
It will be observed that in this deed the only condition contained therein was that no grain elevator should ever be built thereon or grain ever be handled thereon. It left the estate free to be used for any and for all other purposes whatsoever, and was not subversive of the estate and did not destroy or limit its alienable or inheritable character. (Cowell v. Colorado Springs Co.
In support of appellants’ contention that the condition in this deed is contrary to public policy and against,, the public welfare, ^attention is. called to the fact that the evidence shows that the building erected on the premises in question is a public warehouse and a subject of great public concern, in the encouragement of which the public has an interest, and that any condition which would tend to restrict such encouragement must necessarily be deemed contrary to public policy.' At the time of the deed to appellant Best there was no elevator upon the premises or grain being handled thereon. The condition in the deed became effective upon the delivery of the deed, and the public, so far as it related to the property here involved, could have no interest in a business not then existing thereon. Had the restriction been so broad as to have affected all the available lands in the community from being occupied by a warehouse, or had there been, at the time the deed' was made, a public warehouse upon the premises and the condition sought to prohibit the use of such as a warehouse, then a different question might be presented for determination, as to the effect of which we express no opinion. The public is no more injuriously affected by a condition prohibiting the use of a small tract of land in a village for the purpose of a public warehouse than it is affected by a condition prohibiting the use of a tract of ground for a school house, and in the illustrations above cited there are numerous businesses of great public concern, but their inhibition from limited areas were not deemed to-be inimical to public policy.
Nor do we think the contention of counsel for appellants that the condition violates the spirit of the rule of perpetuities can be sustained. In Gray v. Chicago, Milwaukee and St. Paul Railway Co.
Appellants further urge that the condition should not be enforced for the reason that appellees are estopped from claiming under the restriction because they had actual notice of the intention of appellants to erect a warehouse upon the premises, which were vacant, and permitted appellants so to do without hindrance or objection. There is no proof in the record that the appellees stood by and permitted this elevator to be erected upon this property without protest; but even if such were the case, it would not be permissible, in an action of ejectment, to invoke estoppel in pais in order to defeat the legal title to the land. Linnertz v. Dorway,
Appellants insist that the rulings of the trial court in excluding certain evidence tending to show the nature of the business and property interests of appellees in the village of Princeville was erroneous. There was no error in excluding this testimony. Gray v. Chicago, Milwaukee and St. Paul Railway Co. supra.
At the request of appellees the court trying the case without a jury made four holdings as to the law of the case: First, that the condition in the deed was a valid one and for violation of it appellees could recover; second, that the condition was not such a restraint of trade as to violate the law or to invalidate the deed; third, that appellants werq estopped from denying the title of appellees at the time of making the deed in controversy; fourth, that it was not necessary, in order to enable the plaintiffs to recover, that they should show where they procured their title or what that title was. The appellants offered fifteen holdings, of which the first, third and fourth were held as requested and the remaining twelve were refused. All the refused holdings but the eleventh were upon the proposition that real estate is an article of commerce; that uses to which it should be devoted are constantly changing as the business of the country increases and as its new wants are developed, and it is contrary to public policy to tie up real estate with restrictions and prohibitions as to its uses. This proposition was presented in various forms; some on the theory that it was against public policy because it was in restraint of trade; others upon the theory that the public is interested in public warehouses and in the business conducted in them; and others that such restrictions were against the constitution and laws of the State. The eleventh refused holding was to the effect that the restriction was void because it prevented the building of a public warehouse on the only suitable and available lots in the village; that there was no public warehouse in the village at the time of the execution of'the deed, and because, further, the grantor had no other lots or interests in the village. This instruction was refused because it was not applicable to the facts. If the propositions offered on behalf of appellees were properly held, as we think they were, the court did not err in the refusal of those asked by appellants.
Finding no errors in the record the judgment of the circuit court is affirmed.
judgm6nt affirmed.
Mr. Justice Boggs:' I do not concur in this opinion.