Mandlebaum v. McDonell.

warranting such a restriction, and upon which all such elementary writers, annotators, and judges, who profess such an opinion upon any authority, rely, but which I propose presently to show decides no such thing as to any vested estate of any kind.

Neither Chancellor KENT, in his Commentaries, nor Mr. Hilliard, in his work on Real Property, recognize the validity of such a restriction, though they both notice all the others mentioned as good by Littleton, Coke, Cruise, Bacon and Sheppard (or Mr. Justice Doderidge, whichever was the author of the Touchstone). And Bacon and Hilliard, as well as Fearine, Cruise, and the annotators upon Coke super Littleton, cite Large's case to another point which it does involve, but not to that we are now considering.

Coming now to the authorities relied upon by the counsel as supporting such a restriction. Doe v. Carter, 8 T. R. 60, was a case which did not in the remotest degree involve any such question. But Lord KENYON, in a dictum entirely aside from the case, and for which he cites no anthority (and, therefore, not likely to nave been argued, or if argued at all, to have been as carefully tonsidered as the real question upon which the case turned), in speaking of qualifications to the maxim " Modus et conventio,” etc., says: "For a grantor, when he conveys an estate in fee, cannot annex a condition to his grant not to alien; nor when he conveys an estate tail, a condition not to bar the entail; such restrictions are imposed to prevent perpetuities. But short of that restriction, both parties to a contract may make it in whatever manner they please."

Now, so far as regards estates tail, it is no doubt true that the restriction he mentions was imposed to prevent perpetuities. But this was, as it seems to me, rather carelessly connected by him with an estate in fee, if indeed he intended to connect that with the reason given. And I venture to say that nothing can be found in the English law up to that time (at least I have been able to find nothing) which in any manner indicates that the reason for holding restrictions upon the sale of a fee simple void, was to prevent perpetuities; and the English law is still, so far as I can discover, just as far from warranting such an idea, though this dictum has given rise in this country to several dicta of the same kind.

The case of Doe v. Pearson I have already referred to, and it does not relate in any manner to a restriction as to time.

Mandlebaum v. McDonell.

Gray v. Blanchard, 8 Pick. 284, was the case of a condition only against using the property in a certain manner (no windows to be placed in the north wall of a house); and, of course, all that was said about the validity of a condition against selling within a particular time, could be nothing else but a dictum; and upon examination it proves to be a very careless dictum, for that eminent judge. He cites Coke Litt. 223, to the proposition that "if the condition be that the grantee shall not alien to particular persons, or within a reasonable limited period, these conditions shall stand, not being inconsistent with the nature of the estate granted." Upon reference to the work cited, it will be found that "this shaft came never out of Littleton's quiver of choice arrows," nor from that of Lord COKE, and that neither Littleton nor Coke have spoken at all of a restriction for any time. Again this dictum cites Sheppard's Touchstone, 131, to the proposition: "If one make a feoffment in fee, on condition that the feoffee shall retain the land for twenty years without interruption, it seems this is a good condition." On turning to page 131 of the Touchstone, I find this passage: "If one make a feoffment of land in fee, on condition that the feoffor shall retain the lands" (and the rest of the passage in the very words quoted by the judge), a difference in one word which wholly changes the effect of the passage. I should be inclined to charge so obvious a blunder to the printer, but for the fact that without it the passage would be against the purpose for which it seems to have been cited.

Blackstone Bank v. Davis, 21 Pick. 42, and Simonds v. Simonds, 3 Metc. 562, both contain dicta to a similar purport. But they are so obviously mere matter of illustration, mere dicta, in no way relating to the question before the court, and made without exami nation, that it is unnecessary to notice them further.

There is also a like dictum in the opinion of Judge PLATT, in Jackson v. Shutz, 18 John. 184 (a case which has been overruled in that State, so far as it has any bearing here, by the well-considered case of De Peyster v. Michael, 6 N. Y. 467), and Judge PLATT cites Large's case in support of the dictum.

Langdon v. Ingram's Guardian, 28 Ind. 360, was a devise of real estate to the widow, in trust for the benefit of children, and the restriction was upon her power to convey until the youngest of the children should become of age. I see no objection to this, so long as it did not violate the rule against perpetuities. But so far as

Mandlebaum v. McDonell.

any thing is said upon the right of restricting the power of sale generally, of an estate in fee, when the conveyance is made directly to the party himself and for his own benefit, it was aside from the case, and not authority. Fisher v. Taylor, 2 Rawle, 33, was also a conveyance to trustees, and involved substantially the same principles as the Indiana case last cited.

In McWilliams v. Nisley, 2 Serg. & Rawle, 507, the facts (as stated in the brief of defendant's counsel, which I find sufficiently correct as far it goes) were these: "A man deeded certain land to his son-in-law with a restriction that he should not sell it during the life of the grantor, except in a specified contingency. There was no condition for a forfeiture or limitation over in case of sale." [But the restriction was imposed for the benefit of the grantee's wife and children.] "The grantee conveyed the land in violation of the restriction, by a warranty deed. He died, and the children (heirs) brought ejectment against the party claiming under their father's deed." Defendant's counsel say: "The court held the restriction against alienation in the original deed valid, but gave judgment against the plaintiffs on the ground that they were estopped by the warranty in their father's deed." On a careful examination, I think it is stating the case rather strongly to say that the court judicially decided the restriction to be valid. TILGHMAN, J., does clearly express that opinion, but in substance his conclusion is, that, whether good or not, the heirs were estopped, and the case was clear upon that point. GIBSON, J., as I understand him, does not expressly hold the restriction good, but the fair result of his opinion is that, assuming it to be good, still the heirs were estopped, and the case was clear upon that point. The last is clearly the real ground of the decision, and, whether righ or wrong, it is quite manifest neither of the judges considered the other question as necessary to the decision upon that point, nor therefore upon the case. But so far as it may be said to have treated the restrictions as valid, it was put upon the ground that the acceptance of the deed was equivalent to a covenant to stand seized “to such uses as appear to have been intended in favor of his wife and children." And if GIBSON, J., can be said to have sustained the condition as good at all, it was, I think, upon this ground only, and it seems to me to be impliedly admitted by the opinions, when taken together, that such a restriction would not be good in common-law conveyances. But certainly the restriction

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could not be sustained on this ground under the will in the present case, for two very satisfactory reasons at least: First, we had no statute of uses in this State until March, 1849 (Trask v. Green, 9 Mich. 358), and our present statute would hardly sustain covenants to stand seized; and, second, had there been such statute there were no parties here in whose favor any use could operate, or for whom the devisees were to stand seized.

TILGHMAN, J., after stating that a restriction against selling to a particular person would be good, says: "So I take it if the restriction was of the alienation during a particular time, as is proved by the decision in Large's case, 2 Leonard, 82, which has been cited and recognized in the books, abridgments, and elementary authors of good authority down to the present day, and I have no doubt is good law." Now, I have carefully examined Large's case referred to, and fully agree with the judge that it is good law. I feel equally confident that it was not then, and never has been, any authority for the proposition for which the learned judge cites it, viz.: that a restriction or condition in the conveyance of a vested estate in fee simple against alienating for a particular time is valid. Judge TILGHMAN, like Judge PLATT in Jackson v. Shutz, 18 Johns. 184, and ke some of the elementary writers (Washburn on Real Prop. $9), and some annotators and compilers, seems to have overlooked the fact that the estate to which was attached the condition against the alienation "until William" (another son of the testator) "should come of the age of twenty-two years," was but a contingent remainder, which was not to vest until the son William should arrive at that age; and might never vest at all, and could never vest if the son William should happen to die before that age; but if he should happen to live to that age, the estate would from that moment vest, and from the same moment, also, the restriction, by its very terms, was to cease. The interest in such a remainder at that time (whatever it may have become since) could hardly be looked upon as property subject to sale at all, even without this restriction, until the event should happen upon which it was to vest; for, though descendible to heirs and assignable in equity, it could not be sold and transferred as property by any instrument of conveyance known to the common law, though it might (shortly after that time, at least), in some cases, where such a proceeding was applicable, be cut off, extinguished or barred, and in a certain sense passed over, by the estoppel created by fine or common recov

Mandlebaum v. McDonell.

ery; a kind of quasi judicial proceeding in which the person entitled was brought in as vouchee. (Note to Coke Litt., vol 2, p. 140; 2 Cruise's Dig., by Greenl., 333.) Large's case was decided in K. B., 29th Eliz., and as reported is peculiarly liable to be misapprehended upon a hasty glance, as the particular ground of the judgment is not mentioned. But when the facts are examined, it will be found to be a clear case of contingent remainder, as I have stated. “A, seized of lands in fee, devised the lands to his wife until William, his son, should come to the age of twenty-two years, and then the remainder of part of the lands to his two sons, A and John; the remainder of other part of his lands to two others of his said sons, upon condition that if any of his said sons, before William should come to the age of twenty-two years, shall go about to make any sale of any part, etc., he shall forever lose the lands and the same shall remain over, etc. And before his said son William came to twenty-two years, one of the other sons leased that which to him belonged, for sixty years, and so from sixty years to sixty years, until two hundred and forty years ended," etc. The question was, whether this was a breach of the condition, and the court held it was. 2 Leon. 82. As reported in 3 Leon. 182, the same devise is stated as follows: "A, seized of lands in fee, devised the same to his wife till William, his younger son, should come to the age of twenty-two years, the remainder when the said William should come to such age, of his lands in D to his two sons, Alexander and John, the remainder of his lands in C to two other of his sons, upon condition, Quod si aliquis dictorum filiorum suorum circumibit vendere terram suam, before his said son William should attain his said age of twenty-two years in perpetuum perderet eam,” and the other facts as in the case in 2 Leonard, 82. Now, this is the case of a contingent remainder, as given by Mr. Fearne on Contingent Remainders, p. 5, and of the first class mentioned by him, for which he cites, among others, this same case. See Thomas' Coke Litt., vol. 2, pp. 104 and 105 (top paging 2d Amer. ed.) In Bacon's Abridgment, vol. 7, p. 749 (Amer. ed. 1813), title "Remainder," I find the precise case stated (except that twenty-one instead of twenty-two years is inserted): "But if one gives lands to A till B comes to twenty-one years of age, and when B comes to such age then the remainder over, this remainder is contingent, and uncertain whether it will ever vest, for if B dies before such age, the remainder is become void." And in the margin I find a reference