Williams v. Sealy, 201 N.C. 372 (1931)

Sept. 30, 1931 · Supreme Court of North Carolina
201 N.C. 372


(Filed 30 September, 1931.)

Wills E g — An absolute restraint on alienation annexed to a fee is void.

A devise of land to certain named beneficiaries in fee but tbe land not to be sold under fifty years from tbe testator’s death gives tbe devisees tbe immediate right of alienation, tbe absolute restraint on alienation being annexed to a fee is void.

Appeal by defendant from Darnels, J., at May Term, 1931, of ROBESON.

Controversy without action submitted on an agreed statement of facts.

Plaintiffs, being under contract to convey a certain tract of land to the defendant, duly executed and tendered therefor a deed sufficient in form to invest the defendant with a fee-simple title, and demanded payment of the purchase price as agreed, but the defendant declines to accept the deed and refuses to make payment of the purchase price on the ground that the title offered is defective.

It was agreed that if, in the opinion of the court, under the facts submitted, plaintiffs were able to convey a good and indefeasible fee-simple title to the land in question, judgment should accordingly be entered for the plaintiffs, otherwise for the defendant.

The court, being of opinion that the deed tendered was sufficient to convey a full and complete fee-simple title to the land in question, gave judgment for the plaintiffs, from which the defendant appeals, assigning error.

Johnson & Floyd for plaintiffs.

McLean <& Stacy and Robert Weinstein for defendant.

Stacy, C. J.

On the hearing, the title offered was properly made to depend upon the construction of the following limitation in the will of Miss A. E. "Williams:

*373“Tbe children of B. P. Williams, Tait, Frank, Roland, Dorcas and Lula, to have my land after tbe lease expires on it and for it not to sell under fifty years after my death.”

It is conceded that if tbe children of B. P. Williams take a fee, with immediate power of alienation, in tbe land devised to them under tbe above clause in tbe will of Miss A. E. Williams, then tbe deed tendered is sufficient, and tbe judgment for tbe plaintiffs is correct, but defendant questions tbe immediate power of alienation because of tbe limitation against selling under fifty years from tbe 'death of tbe testatrix.

Tbe devise to tbe children of B. P. Williams is in fee, and it is tbe bolding with us that an absolute restraint on alienation, though for a limited time, annexed to a grant or devise in fee, is void. Combs v. Paul, 191 N. C., 789, 133 S. E., 93; Schwren v. Falls, 170 N. C., 251, 87 S. E., 49; Christmas v. Winston, 152 N. C., 48, 67 S. E., 58; Foster v. Lee, 150 N. C., 688, 64 S. E., 761; Wool v. Fleetwood, 136 N. C., 460, 48 S. E., 785; Latimer v. Waddell, 119 N. C., 370, 26 S. E., 122.

Tbe judgment of tbe Superior Court, therefore, striking out tbe purported restraint on alienation and declaring tbe plaintiffs tbe owners in fee of tbe premises, with immediate power to dispose of tbe same, must be upheld. Jus disponendi is an incident to tbe ownership of property in fee.