WILLS et al v. PIERCE et al.

Supreme Court of Georgia1951-10-10No. No. 17557

208 Ga. 417

Summary · law.co

Holding. The condition subsequent requiring that the property be used as a home by the grantee, his family, and his heirs is void and unenforceable because it effectively prohibits alienation of the fee-simple estate, which is repugnant to the estate granted. The judgment was reversed.

A grantor conveyed land in fee simple to a grantee with a condition that the property must be used as a home by the grantee, his family, and his heirs. If the property was abandoned as a residence, it would revert to the grantor's estate. The grantor later sought to enforce this condition and have the property forfeited for breach. The court held that although the deed's granting language alone would have created an unconditional fee-simple estate, the condition subsequent requiring use as a home was void because it effectively prohibited the grantee and his heirs from selling the property, making the two requirements mutually exclusive.

The court distinguished this case from prior decisions upholding conditions limiting alienation to specific persons or reserving a right of repurchase. The court noted that a different result might follow if the condition had merely restricted use to residential purposes generally without binding all future heirs to maintain a home on the property. Because the condition was void, the grantor's petition to enforce forfeiture failed to state a valid legal claim.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a condition subsequent requiring use of fee-simple property as a home is valid and enforceable
Whether a condition that prohibits sale of property is repugnant to a fee-simple estate
Distinction between conditions restricting use generally versus conditions binding future generations to homestead requirements

Procedural posture

The defendants demurred to the grantor's petition seeking to enforce forfeiture of the property for breach of a condition subsequent, and the trial court overruled the demurrer.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Atkinson, Presiding Justice.

(After stating the foregoing facts.) The granting clause in the deed under consideration was: “In consideration of the sum of one dollar to me paid, I . . do hereby sell and convey to [the grantee and,] . . his heirs, a tract or parcel of land and appurtenances in fee simple.” Then followed a description of the land, after which the grantor inserted the provision that the property was to be used as a home by the grantee, his family, and his heirs, and that upon the abandonment of the property as a residence by the grantee, his family, or his heirs, the same should revert to the grantor’s estate and go as provided in his will.

Standing alone, the first clause in the deed would have conveyed an unconditional fee-simple estate, and the sole question for determination is whether or not the condition subsequent under which the forfeiture is claimed is valid and enforceable.

A provision in a deed or will that a fee-simple estate may not be sold is void as being repugnant to the estate granted. Code, § 85-903; Freeman v. Phillips, 113 Ga. 589 (38 S. E. 943); Crumpler v. Barfield & Wilson Co., 114 Ga. 570 (40 S. E. 808); Stamey v. McGinnis, 145 Ga. 226 (88 S. E. 935); Leach v. Stephens, 159 Ga. 193 (125 S. E. 192); Farkas v. Farkas, 200 Ga. 886 (2), (38 S. E. 2d, 924).

While no express language is used in the present deed inhibiting alienation of the property, nevertheless—the condition being that the property was to be used as a home by the grantee, his family, and his heirs-—-the requirement to use as a home and the right to sell are mutually exclusive, and whether or not the case falls within the rule against perpetuities, the conclusion is inescapable that since the grantee and his heirs must use the premises as a home they cannot sell it.

The instant case is distinguished by its facts from Wadley Lumber Co. v. Lott, 130 Ga. 135 (1), (60 S. E. 836), where the condition subsequent was that the grantor reserved the right to repurchase the land, and Blevins v. Pittman, 189 Ga. 789 (2a), (7 S. E. 2d, 662), where the the restriction against alienation was limited to one person and her children.

A different question would have been presented if the condition subsequent had been that the premises should be used “as a home” or “for residential purposes” generally. See, in this connection, City of Barnesville v. Stafford, 161 Ga. 588 (1), (131 S. E. 487, 43 A. L. R. 1045), Taylor v. Bird, 150 Ga. 626 (104 S. E. 502), Rustin v. Butler, 195 Ga. 389, (24 S. E. 2d, 318), Williams v. Ramey, 201 Ga. 737 (1), (41 S. E. 2d, 159), Tabor v. Gilmer County, 205 Ga. 439 (1), (53 S. E. 2d, 915), and similar cases, where conditions subsequent requiring use of property generally for park, school, religious, and courthouse purposes were held valid and enforceable.

Accordingly, the present petition, seeking to enforce a forfeiture for breach of a void condition subsequent, failed to set forth a cause of action, and the trial court erred in overruling the defendants’ general demurrer.

Judgment reversed.

All the Justices concur.