Douglass v. . Stevens

200 S.E. 366, 214 N.C. 688, 1939 N.C. LEXIS 412

• Court: Supreme Court of North Carolina
• Decided: January 4, 1939
• Status: Published

Opinion

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 Jay Barnette Douglass:

“Upon the death of my wife I will that these two stores become the property of our two children Jay Barnette Douglass, Jr., and Adelaide 0. Douglass, with the condition that they shall in no wise either sell or mortgage said property for a period of not less than 50 years.”

It is conceded that if the plaintiffs, children of the testator, take a fee in the lands devised to them under the above clause in their father’s will with immediate power of alienation, the deed tendered is sufficient, and tbe judgment in favor of the plaintiffs is correct, but the defendant questions the immediate power of alienation because of the annexed condition “that they shall in no wise either sell or mortgage said property for a period of not less than 50 years.”

It is further conceded that the plaintiffs take a vested remainder interest in fee to the lands in question under their father’s will, Barbee v. Thompson, 194 N. C., 411, 139 S. E., 838, and the case states that they have acquired the life interest of their mother by deed duly registered. Hence, under the uniform holding with us that an absolute restraint on alienation, for any length of time, annexed to a grant or devise in fee, is void, the condition subsequent attempting to limit plaintiffs’ right to sell or mortgage the devised premises must be regarded as inoperative and of no effect. Barco v. Owens, 212 N. C., 30, 192 S. E., 862.

The ease at bar is not distinguishable from Williams v. Sealy, 201 N. C., 372, 160 S. E., 452.

The judgment decreeing specific performance will be upheld.

Affirmed.