Page v. Page

394 P.2d 612, 15 Utah 2d 432, 1964 Utah LEXIS 288

• Court: Utah Supreme Court
• Decided: August 6, 1964
• Docket: 10044
• Status: Published

Opinions

CALLISTER, Justice.

This is an appeal from a summary judgment that declared void on grounds of public policy a provision in a decree of distribution that restrained the plaintiff from alienating certain real property without the consent of the appellants.

Alma Meredith Page, a son of appellants, died intestate in 1956; surviving him were his wife and minor daughter, Ruth Jensen Page and Ane Kirstine Page. His estate consisted of the real property which is the subject of this litigation and which he was purchasing under a uniform real estate contract. At the time of his death there were in effect on his life several life insurance policies which designated his parents as beneficiaries. There was a dispute between the parents and the wife as to whether the proceeds, which amounted to $20,000, belonged solely to the parents or were subject to a trust in favor of the surviving wife and child. The parties entered into a stipulation whereby it was agreed that of this $20,000 in dispute, the parents (defendants) would take $11,000 and would permit $9,000 thereof to be used to pay the balance on the real estate contract and some other debts of plaintiff. The widow agreed that she would not, either in her own right or as guardian of her minor child, sell or mortgage the real property without the consent of decedent’s parents until her daughter should either have reached the age of 21 years or until one year after her daughter married, whichever was sooner. This agreement was approved by the probate court, and the provision was incorporated in the decree of distribution.

The respondent commenced the present action to avoid the effects of the above provision, and the trial court granted her motion for summary judgment, which vitiated the provision. The court held that the agreement requiring appellants’ consent constituted a restraint on alienation of the property and was void as being against public policy, and therefore, the provision in the decree incorporating such a restriction was void on its face.

It is undisputed by the parties that the plaintiff owned the land in fee simple; neither is there a contention that the defendants owned any interest in the land by way of either legal title or security interest, nor that any trust or option to repurchase was involved.

The appellants contend that a restriction on alienation of property for a limited period of time entered into by an agreement is not void as being against public policy.

First and foremost, this provision was repugnant to the nature of a fee simple, for one of its essential incidents is the power to alienate. This provision was a disabling restraint in form (in contrast to a forfeiture provision). Section 26.24 of the American Law of Property, Vol. VI, states:

“A disabling restraint upon a fee simple in land, * * * though limited in time, is now everywhere invalid, with the possible exception of the states of Indiana and Nebraska, where the law is doubtful.”

Within an exhaustive annotation in 42 A.L.R.2d the general rule is summarized as follows:

“ * * * one who owns land by legal title in fee cannot by any provision of the instrument of conveyance to him, nor by provisions of a later instrument (unless indirectly as the effect of a contract of sale, option, etc.) be restrained from alienating the property even for a limited time, whether by language of naked prohibition or by a condition or a limitation over in case of alienation made.” ¹

‘‘The rule which prevails in most jurisdictions of this country * * * and which continues to gain acceptance, is that the ownership of land by legal title in fee carries with it as an incident of the estate the right to sell, mortgage, or alienate the property at any time; consequently, * * * any provision of an instrument of conveyance or of any later instrument which purports to prohibit or restrain the conveyee or owner in fee from alienating the property or to withhold from him the right or power to alienate, whether for the entire period of his life or for some lesser time, is void. The ground usually assigned for the rule is that the restraint is repugnant to the fee; in the last analysis this may be no more than a mode of expressing the established public policy.”²

Section 8 of the annotation (42 A.L.R. 2d) is specifically addressed to the problem of the instant case; the pertinent provisions are as follows:

“(a) [p- 1302] In general * * * provisions in any form against the alienation of land by the legal owner in fee without the consent or joinder of some other person designated are void.

“(b) [p. 1303] The rule invalidating restraints applies in the case of a contract provision purporting to bind a fee owner without consent.”

In Section 8(c) pp. 130S-6, there is a statement that only a few cases have dealt with conditions against alienation without consent, and that Alabama, Kentucky, and Ontario have upheld these particular restraints. It is particularly noteworthy that those instances in which a restraint was upheld it was to protect an interest in the premises vested in the person who was to give the consent and involved a forfeiture provision.

The annotation further cites cases from Michigan, Iowa and Florida where it was held that a provision whereby the fee holder would not sell, grant, devise, convey, or cause the premises to become mortgaged without consent was void under the general rule that a restraint, even for a limited time, against alienation of a fee simple estate is void. This type of condition has been declared void despite the fact that it was included for security in respect of money to be paid,³ or to protect valuable improvements erected upon the land,⁴ or to protect the holder of a second mortgage.⁵

The trial court is affirmed; costs are awarded to plaintiff.

McDonough and crockett, jj., concur.

1 . Section 6, p. 1290.

2 . 42 A.L.R.2d Section 2, p. 1247.

3 . Campau v. Chene, 1 Mich. 400 (1850).

4 . Sisters of Mercy v. Lightner, 223 Iowa 1049, 274 N.W. 86 (1937).

5 . Davis v. Geyer, 151 Fla. 362, 90 S.W.23 727 (1942).