Combs v. Paul, 191 N.C. 789 (1926)

May 19, 1926 · Supreme Court of North Carolina
191 N.C. 789

S. M. COMBS et ux. v. F. T. PAUL et ux.

(Filed 19 May, 1926.)

Deeds and Conveyances — Restraint on Alienation — Title.

Restrictions contained in a clause in a deed to lands that they should not be conveyed to any one during the life of two of the grantees, are void as an attempted restraint upon alienation, and the grantees may convey an absolute fee-simple title, upon the principle that an unqualified restraint on alienation, annexed to a grant in fee, is void, being repugnant to the estate granted.

Appeal by defendants from Grady, J., at Chambers, Edenton, N. 0., 31 March, 1926, from Beaueoet.

Controversy without action, submitted on an agreed statement of facts.

Plaintiffs, being under contract to convey a certain bouse and lot to tbe defendants, duly executed and tendered a deed therefor and demanded payment of tbe purchase price as agreed. The defendants declined to accept tbe deed and refused to make payment, alleging that tbe title offered is defective.

On tbe facts agreed tbe court, being of opinion that' tbe deed tendered was sufficient to convey a good title, gave judgment for tbe plaintiffs, from which tbe defendants appeal, assigning error.

J. D. Paul for plaintiffs.

A. W. Bailey for defendants.

*790Stacy, C. J.

On tbe bearing tbe title offered was properly made to depend upon tbe validity of tbe following restrictive clause in a deed conveying tbe property in question from David J. Roberts to Mary D. Roberts and John A. Roberts, ber busband, for life, remainder to Allen Roberts in fee, executed 14 May, 1914, said deed forming a link in plaintiff’s paper chain of title:

“Tbis deed is made witb tbe distinct understanding tbat said Allen Roberts shall not dispose of said lot during tbe life of either said Mary D. or John A. Roberts, by any means whatsoever, whether be be authorized to do so by said Mary D. Roberts and John A. Roberts by deed or otherwise, it being tbe distinct understanding and meaning hereof tbat said lot shall be held for tbe term of their natural life of Mary D. and John A. Roberts and shall not be reconveyed until both are dead.”

On 21 January, 1916, all tbe grantees in tbe above-mentioned deed reconveyed tbe property described therein to their original grantor, David J. Roberts, by full warranty deed, and, by mesne conveyances, tbe present plaintiffs are now tbe owners in fee of said bouse and lot, unless their title is affected by tbe restriction contained in tbe deed above mentioned.

His Honor held tbe restriction void, because in restraint of alienation, but, if not invalid for tbis reason, tbat it was revoked- by tbe re-conveyance of 21 January, 1916.

Tbe judgment must be upheld on authority of Latimer v. Waddell, 119 N. C., 370., An absolute restraint on alienation, though for a limited time, annexed to a grant in fee, is void. Wool v. Fleetwood, 136 N. C., 460.