This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
The applicability of the rule is not affected by the fact that the person or persons who would take in case of the occurrence of the event on which the future limitation depends are in being, and could alienate their interests, since the same condition of uncertainty as to the vesting, and, consequently, as to the value of their interests, exists as if the limitations were to persons not in being, or not ascertained, and that this is the law-is recognized by the authoritative text writers, as well as by the later English decisions.86 As rightly understood, therefore, the rule is not inapplicable because the limitation to take effect in the future is in favor of a person in being, who could release his interest; nor, when there is a contingency as to the persons who are to take in the future, does the fact that such persons belong to a class, all the members of which are ascertainable within the statutory period, render the rule inapplicable, though by a conveyance, in which all the members of the class join, the future interest could be aliened. There are, however, a number of dicta and some decisions to the effect that an interest is not invalid under temp. Talb. 228; Gray, Perpetuities, Sec. 175.
84. Hodson v. Ball, 14 Sim. 558; Loring v. Blake, 98 Mass. 253; Gray v. Whittemore, 192 Mass. 367, 116 Am. St. Rep. 246, 78 N. E. 422; Stone v. Nicholson, 27 Gratt. (Va) 1.
85. Jee v. Audley, 1 Cox. 324; In re Dawson, 39 Ch. D. 155; Stout v. Stout, 44 N. J. Eq. 479, 15 Atl. 843; Flora v. Anderson, 67 Fed. 182; Rand v. Smith, 153
Ky. 516, 155 S. W. 1134.
86. Marsden, Perpetuities, c. 3: Gray, Perpetuities, c. 7; 1 Sanders, Uses (5th Ed.) 203; In re Har-greaves, 43 Ch. Div. 401, London & S. W. Ry. Co. v. Gomm, 20 Ch. Div. 5G2; Winsor v. Mills, 157 Mass. 362, 32 N. E. 352; Starcher v. Duty, 61 W. Va. 373, 56 S. E. 527.
The occasional, if not frequent, misunderstanding of the rule in this regard, as being directly aimed at limitations which render the land inalienable, "though all mankind join in the conveyance," as it has been expressed, arises in part, no doubt, from the fact that, before the development of the rule here treated of, the word "perpetuity" was used in an entirely different sense from that of "remoteness of vesting." The conception of a perpetuity as it presented itself to the minds of the early judges found its typical example in the case of a fee tail, as it existed before the introduction of methods by which it could be barred.88 The word in this original primary sense meant an interest which was both indestructible and inalienable. Accordingly, it was said that a condition, in an instrument creating an estate tail, that a recovery barring the entail should not be suffered, was bad, as conducing to a perpetuity;89 and, on the same ground, the courts at first refused to recognize limitations of terms for years after a failure of issue of the first taker, since they could not be barred by recovery or otherwise.90 And so it was considered that a contingent remainder, if it were indestructible, since it could not be aliened, would constitute "a perpetuity."91
87. See Scatterwood v. Edge, 1 Salk. 229; Avern v. Lloyd, L. R. 5 Eq. 383; Gilbertson v. Richards, 4 Hurl. & N. 277, 5 Hurl. & N. 453; Birmingham Canal Co. v. Cart-wright, 11 Ch. Div. 421.
88. Gray, Perpetuities, Sec.Sec. 140, 141, 152, 156-159. See ante, Sec. 27.
89. Corbet's Case, 1 Coke. 83b; Mildmay's Case, 6 Coke, 40a.
90. Gray, Perpetuities, Sec.Sec. 156,
161; Child v. Baylie, Cro. Jac. 459. These early decisions were overruled by the Duke of Norfolk's Case, 3 Ch. Cas. 1, so far as they decided that a devise over of a term on failure of issue in the first taker was void even though the failure of issue must occur within a life or lives in being.
91. Chudleigh's Case, 1 Coke
Sec. 182 ]
The word "perpetuity" is still sometimes used in this primary sense, which is evidently the more natural signification of the word. This being so, the rule against perpetuities, of which we here treat, might, as stated by a leading authority on the subject,92 be more properly termed the "rule against remoteness," and, if this had been done, there would now exist a much more general apprehension of its true character.