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 .
As a condition or limitation operating indirectly to restrict alienation by a tenant in fee simple is invalid, so a direct prohibition of such alienation is invalid, that is, a tenant in fee simple cannot, by the terras of the was ignored by Joyce, J., in Re Leacn (1912), 2 Co. 122, criticized, 33 Law Quart. Rev. 13, 240.
41. De Peyster v. Michael, 6 N. Y. 467; In re Rosher, 26 Ch. Div. 806; Billing v. Welch, Ir. Rep. 6 C. L. 88. As is a similar provision in the case of a fee tail. King v. Burchell, Amb. 379; Gray, Restraints on Alienation, Sec. 25.
42. Ante, Sec. 11.
43. See Co. Litt. 223a, and extracts from Bracton and Britton in Gray, Restraints on Alienation, Sec.Sec. 16, 17.
44. Gray, Restraints on Alienation, Sec. 257.
45. See Co. Litt. 223a: Man-dlebaum v. McDonell, 29 Mich. 78, 95; De Peyster v. Michael, 6 N. Y. 467, 491.
If one is given, not an estate, but a mere possibility of an estate, such as an executory interest or a contingent remainder, a restraint on alienation until the time of vesting is valid, that is, the non alienation of the interest given may be made a part of the condition precedent on which the vesting is to occur.47
Limited restriction. A provision which operates, directly or indirectly, to restrain alienation by a legal tenant in fee simple in some particular way, as by conveyance inter vivos,48 ox mortgage,49 or for some particular purpose, as to carry out a sale,50 is, by perhaps the weight of authority, invalid,"51 for the same reasons as apply in the case of a provision in more general terms.
46. Hill v. Gray, 160 Ala. 273, 49 So. 676; Murray v. Green, 64 Cal. 363, 28 Pac. 118; Stamey v. McGinnis, 145 Ga. 226, 88 S. E. 935; Johnson v. Preston, 226 111. 447, 10 L. R. A. (N. S.) 564, 80 N. E. 1001; Goldsmith v. Petersen, 159 Iowa, 692. 141 N W. 60; Turner v. Hallowell Sav. Inst., 76 Me. 527; Clark v. Clark, 99 Md. 356, 58 Atl. 24; Lathrop v. Merrill, 207 Mass. 6, 92 N. E. 1019; Mandlebaum v. McDonell, 29 Mich. 78, 18 Am. Rep. 61; Loosing v. Loosing, 85 Neb. 66, 122 N. W. 707; Schwren v. Falls, 170 N. C. 251, L. R. A. 1916B,
1235, 87 S. E. 49; McWiliiams v. Nisley, 2 Serg. & R. (Pa.) 507; Mclntyre v. Mclntyre, 123 Fa. 329, 10 Am. St. Rep. 529, 16 Atl. 783; McCravey v. Otts, 90 S. C. 447, 74 S. E. 142; Seay v. Cockrell, 102 Tex. 280, 115 S. W. 1160.
46a. Mandlebaum v. McDonell, 29 Mich. 78, 18 Am. Rep. 61; In re Ogle's Estate, 146 Iowa, 33, 124 N. W. 758.
47. Mandlebaum v. McDonell, 29 Mich. 78. 18 Am. Rep. 61, explaining Large's Case 2 Leon 82, 3 Leon 182. And see Bank of State v. Forney, 33 N. C. 181.
A provision operating to discriminate againsl alienation by will, by limiting the property over in case the tenant dies without having disposed of the property in his lifetime is likewise, it seems, invalid,52 not, it is evident, because such a provision tends to withdraw the property from commerce, for this it does not do, hut rather because it operates to deprive the tenant of his legal right of testamentary disposition, and may deprive his heirs of their right to take by descent. And likewise.
48. Pritchard v. Bailey, 113 N. C. 521, 18 S. E. 668; Kauf-lan v. Burgert, 195 Pa. St. 274, 78 Am. St. Rep. 813, 45 Atl. 725; Martin v. Martin, 19 L. R. Ir. 72. Contra, Re Winstansley, 6 Ont. 315; Smith v. Faught, 45 Up. Can. Q. B. 484;. Re Bell, 30 Ont. 318.
49. Ware v. Cann, 10 Barn. & Cr. 433. Contra, Chisholm v. London & Western Trusts Co., 28 Ont. 347; Re Martin & Dagneau, 11 Ont. Law Rep. 349.
50. Cushing v. Spalding, 164 Mass. 287, 41 N. E. 297: Re Rosher, 26 Ch. D. 801; Hood v. Oglander, 34 Beav. 513. Contra, Re Macleay, L. R. 20 Eq. 186 (semble); Re Winstanley, 6 Ont. 315; Smith v. Faught, 45 Up. Can. Q. B. 484; Re Martin & Dagneau, 11 Ont. Law Rep. 349.
In Dulin v. Moore, 96 Tex. 135, 70 S. W. 742, it was decided, without discussion, that in the case of trust property a provision against alienation except for the purpose of reinvestment is valid. But as a trustee has power to alien only when it is expressly given, such a proviso would seem to be simply nugatory, or equivalent to a power to alien for purposes of reinvestment only. The similar provision in Hood v. Oglander, 34 Beav. 513, which was held invalid, was not associated with a trust.
It is argued by Charles Sweet, Esq. that a restraint on the alienation of a fee simple is valid if inserted, not to prevent alienation, but for some other purpose. See article 33 Law Quart. Rev. at pp. 246-253.
51. See Re Rosher, 26 Ch. D. 801 criticizing Re MacLeay. L. R. 20 Eq. 186 and see also Gray, Restraints on Alienation. Sec. 55.
52. Henderson v. Cross. 29 Beav. 216; Perry v. Mcrritt. L. R. 18 Eq. 152; lie Jones, Richards v. Jones (1898) 1 Ch. 438; Case v. Dwire, 60 Iowa, 442, 15 N. W. 265: See Gray, Restraints on Alienation, Sec.Sec. 56-56b. See also the numerous decisions in this country, to the effect that the limitation over in such form is invalid, not because it operates a provision prohibiting disposition of the property by-conveyance, inter vivos has been regarded as invalid.52a not so substantially interfering with the freedom of alienation as to be within the general rule. 56
As to person. A provision operating to prevent alienation to any except particular named individuals, or except to a certain class of individuals, is, by the weight of authority, invalid,53 as is, perhaps, a requirement that the property shall not be sold without having first been offered to a person named,54 as well as a requirement of the consent of a particular person to the alienation.55 But a condition directed at a transfer to a particular person or persons has been regarded as to restrain alienation, but on the theory that a gift over which can be defeated by the first taker is invalid. Gray, Restraints on Alienation, Sec.Sec. 66-74f, and ante, Sec. 167.
52a. Bonnell v. McLaughlin, 173 Cal. 213, 159 Pac. 590; Kaufman v. Burgert, 195 Pa. St. 274, 78 Am. St. Rep. 813, 45 Atl. 725. There are occasional decisions to the effect that a gift over at the death of the first taker provided he dies intestate, is invalid. Holmes v. Godson, 8 D. M. & G. 152; Shaw v. Ford, 7 Ch. Div. 669; In re Dixon (1903) 2 Ch. 458; Fisher v. Wister, 154 Pa. St. 65, 25 Atl. 1009.