Dеeming certain options to re-purchase the minerals in their lands, created by clauses in the deeds under which they hold,- to be in contravention of the rule against perpetuities
Two deeds áre involved, both of which were executed by Alexander M. Brnen and wife, one bearing date Oct. 18, 1880, and the other Dee. 6, 1881. The former conveyed 66.12 acres of land to John Harvey Burdette and the other 210.36 acres to E. A. Woodall. Burdette conveyed his tract to Underwood who later conveyеd it to Woodall. On June 25, 1908, Wood-all leased both tracts to E. T. Crawford for oil and gas purposes. Prior to the execution of this lease, however, the heirs of Bruen, by a deed dated Jan’y- 31, 1907, had assigned, transferred and conveyed the options or reservations in the Burdette and Woodall deeds, to the United Fuel Gas Company, and that company claims the right, by virtue of the assigned options, to purchase the minerals in Woodall’s lands at the price of $1.00 per acrе.
The reservation or option in the Burdette deed reads as follows: “AND the said party of the second part, as a part of the consideration ©f this purchase, covenants and agrees to and with the said A. M. Bruen, that whenever at any time hereafter the said A. M. Bruen, his heirs or assigns, shall pay or tender to him, the sаid party of the second part, his heirs, or assigns, the sum of $-Sixty six 12-100 dollars, in legal money, being One Dollar per acre of the land herein conveyed, the said party of the second part, his heirs, or assigns, shall and' will convey to said A. M. Bruen, his heirs, or assigns, the right to dig, mine, remove and ship, on and from the premises, all the Limestone, Coal, Iron, or other minerals which may be in and upon said Lot No. 28, together with such rights of way, through, over, and upon s-aid Lot No. 28 as may he necessary to the convenient digging, mining, removing and shipping of said Limestone, Coal, Iron and other minerals, reserving only so much thereof as may be used for domestic purposes.” The оne in the other deed differs from it only in respect to the land, the re-purchase price and the following limitation thereof: “The covenant respecting a reconveyance of these premises as before mentioned is to be null and void after ninety-nine years. ’ ’
Except in one respect these option clauses admittedly fall
The submission of the first of these propositions is accompanied by аn admission of the existence of two lines of authority on the question involved, one of which harmonizes with the position the court has taken. The rule itself as well as the divergent interpretations thereof rests upon considerations of public policy, undue restraint upon alienation of property being regarded as highly detrimental to the interests of society in general. According to one view, the general welfare in this respect is sufficiently protected by inhibition of suspension of the absolute power of alienation, or absolute suspension of such power, for an unreasonable period of timе. Such suspension occurs when the situation of the property is such that nobody can sell or convey it, until after the lapse of that period. But for the rule, such conditions could be created. It is unnecessary here to illustrate the methods of creating them. In the opinion of other jurists, the rule goes further and сondemns limitations that clog alienation and unduly restrain it for an unreasonable length of time, without absolute prevention thereof. So interpreted, it forbids practically all executory limitations, whether by will or deed, that do not vest within the time arbitrarily prescribed as being reasonable, a life or lives in being and twеnty-one years and ten months; and, even though the holders of the respective rights have it in their power to combine them and put the property on the mаrket, the restraint upon alienation is deemed to be incompatible with the welfare of society in general. Such -was the situation in the Starcher rand Duty сase The rule is thus applied in England, Massachusetts, Maine, Pennsylvania, New Jersey, and Illinois, and the interpretation has the approval of Prof. Gray, author of a leading work on the subject. The books abound in learned arguments for and against the policy of this broader scope of the rule, as
It is said the construction to which this court has committed itself is inconsistent with the law respecting conditiоnal grants, a subsequent condition violation of which forfeits the estate granted being valid, however long it may run from the date of the grant. But this argument overlooks very important distinctions. The right or possibility of reverter is regarded as a present vested interest in the land, not an executory interest to vest in the future. Brattle Square Church v. Grant,
Nor is the situation of the. Bruen heirs the same as if their ancestor had made a conditional grant. Bruen parted with all interest in the land, and reserved only a personal right, an option of re-purchase, which, if valid, would amount to an executory limitation, giving him, his heirs and assigns a future, not present, estate in the land upon a contingency, his or their election to buy at a stated price. No analogy between a re-purchase and an entry for condition broken is perceptible. In the former case, there is no condition, no possible forfeiture, and no possibility of a reverter or right of re-entry. The provision cannot be consistently interpreted as anything more or less than an option of purchase, running in one case
The 99 year limitation is too remote, for it might have extended beyond the lives of all living persons for whose benefit thе option was reserved and twenty-one years and ten months. Johnson’s Estate,
Having carefully re-examined the principles of the Starcher and Duty case and seeing no reason for departure therefrom, nor any ground upon which this cause can be distinguished from it, we will reverse the decree complained of, overrule the demurrer and remand the cause.
Reversed and remanded.