Mandlebaum v. McDonell. to 2 Leon. 82, and 3 id. 182, this same Large's case. Mr. Cruise (2 Cruise's Dig., by Greenl., top paging, 230), and Mr. Hilliard, in his work on real estate (vol. 1, p. 514), cite the same case as one of contingent remainder, and neither of them, nor Sheppard's Touchstone, nor any of the annotators of Coke upon Littleton, refers to it under the head of conditions or restrictions upon the sale of a fee. The case falls clearly within the definition of a contingent remainder, as given by all the works on the subject, including Mr. Washburn, who, in his useful work on real estate, has correctly defined the various classes of such remainders, without referring for this purpose to Large's case (though he cites works which cite it as a contingent remainder), while he does cite the case as warranting a restriction upon the power to sell a vested estate in fee for a reasonable time, a proposition which it does not tend to support. When it is so clear that Large's case is no authority for such a proposition, it is perhaps not very important by whom, or how many times it may have been cited for that purpose. But, so far as appears from the books to which I have had access, the first instance in which it is found cited to sustain such a restriction, is in a note to Sheppard's Touchstone, p. 129 (Amer. ed. of 1808), which I take to be the note of Mr. Hilliard, the English editor to the edition of 1780. The passage of the Touchstone to which it is appended is that "if a conveyance be made of land, etc., in fee simple by a deed or will, upon condition that the feoffee or grantee shall not alien to certain persons, this is a good condition." Mr. Hilliard's note is in these words: "And the grantee may also be restrained from alienating for a particular time: Large's case, 2 Leon. 82; 3 id. 182." The statement of the case, already made, shows that this is a very careless note, based upon an evident misapprehension of the case. And relying probably upon this or some other equally careless note of the case (for it could not have been done upon a careful examination of the case), Mr. Gwillim, in 1797, appends a similar note (citing the same case) to a passage in Bacon's Abridgment, "Cor. dition," "L," apparently unconscious that Bacon himself had stated and cited the same case in the text of the same work, as a case of contingent remainder, which, if correct, completely nullifies it as an authority for imposing such a restriction upon a vested VOL. XVIII. — 11 Mandlebaum v. McDonell. estate in fee, for which, as the context shows, Mr. Gwillim cites it. Had the case been cited for such a purpose before the judges who decided it, they would have stared with astonishment. This disposes of all the cases cited by defendants' counsel, so far as they purport to be rested upon the authority of any decided case. Dougal v. Fryer, 3 Mo. 40, so far as it holds that, in case of the conveyance of an estate in fee to a minor, a restriction against his selling during his minority is good, is undoubtedly correct, as he could not sell without such restriction. And I find no fault with the decision as to the effect of the change of the age of majority as fixed by the Spanish law, made by subsequent statute, which may be right or wrong. But what is said in the opinion upon the power of extending the restriction beyond the age of majority, finds, as I think I have sufficiently shown, no support in the English common law. And the reason or maxim upon which the court seem to rest the validity of the restriction: "Cujus est dare ejus est disponere," is too broad, and proves too much, as it would equally warrant a total and perpetual restraint of the power of sale, or the cutting off, at the will of the parties creating the estate, any of the other legal incidents of an estate in fee. And when, as another reason, it is said "the limitation is not upon the estate, but the power to sell," the distinction is too refined for clear comprehension by ordinary minds, and one which does not seem to have occurred to Littleton or Coke, or the other most approved English writers upon the law of real estate, and not very generally to American writers. No authority is cited by the court, for the validity of such a restriction as to time, nor does it appear that any was cited by counsel. Stewart v. Brady, 3 Bush (Ky.), 623, followed by Stewart v. Barrow, 7 id. 368, expressly holds that a restriction upon the power of sale of a fee for a particular time is good. But no authority is cited by the court, and few by the counsel, and the case does not seem to have been much considered upon principle. There was no devise over, and the opinion admits that the restriction was not made a condition, but that the devise was of an unconditional estate, subject to this absolute restriction. In whose favor then (as I have asked with reference to the present case) was the restriction imposed? And who had a right to, or an interest in, its enforcement, or to recover for a breach ? ts Mandlebaum v. McDonell. We were also cited to Perkins v. Clack, 3 Head (Tenn.), 434, but we are unable to perceive that it has any bearing upon the question. And the same may be said of the case of Shonk v. Brown, 61 Penn. St. 320, in which the court expressly held that the restriction did not affect the case; the devise made by the wife, owing to the disability of coverture, being void without the restriction. We are entirely satisfied there has never been a time since the statute quia emptores when a restriction in a conveyance of a vested estate in fee simple, in possession or remainder, against selling for a particular period of time, was valid by the common law. And we think it would be unwise and injurious to admit into the law the principle contended for by the defendant's counsel, that such restrictions should be held valid, if imposed only for a reasonable time. It is safe to say that every estate depending upon such a question would, by the very fact of such a question existing, lose a large share of its market value. Who can say whether the time is reasonable, until the question has been settled in the court of last resort; and upon what standard of certainty can the court decide it? Or, depending as it must upon all the peculiar facts and circumstances of each particular case, is the question to be submitted to a jury? The only safe rule of decision is to hold, as I understand the common law for ages to have been, that a condition or restriction which would suspend all power of alienation for a single day is inconsistent with the estate granted, unreasonable and void. Certainly the law of real estate, as to the incidents and nature of the several species of estates and the effect of the recognized instruments and modes of transfer, is of too much importance to be sacrificed to the unskillfulness, the whims or caprices of a few peculiar individuals in isolated cases. The decree of the Superior Court, overruling the demurrer and granting the relief prayed by the bill, was correct, and should be affirmed, with costs. COOLEY, J., and GRAVES, Ch. J., concurred. CAMPBELL, J., did not sit in this case. Decree affirmed. Buck v. Smith. BUCK, appellant, v. SMITH. (29 Mich. 166.) Specific performance — of partnership agreement not enforceable. The court will not interfere to specifically enforce a contract which by its nature is not practically enforceable on both sides. Accordingly, where an agreement had been made for a partnership between plaintiff and defendant, by which defendant was to contribute an amount of money and plaintiff only his services, held, that an action would not lie to compel the performance of the agreement. B DILL by Moses Buck against William Smith to compel the specific performance of a partnership agreement, and for other relief. The court below dismissed the bill. Sufficient facts are given in the opinion. Moses Buck, in person, and D. W. Perkins, for complainant. C. I. Walker, for defendant. GRAVES, Ch. J. This is an appeal by complainant from a final decree by the Circuit Court for the county of Cheboygan in chancery, dismissing the bill. The record is quite imposing, but it is unnecessary to repeat much of it, or to enter into a minute or extended discussion. There are several grounds of objection more or less serious to any explicit relief in equity. Our attention will be chiefly confined to one which is insuperable. The bill is by the complainant against Smith alone, to compel a specific performance and for incidental relief. The leading and material features of the case which the complainant sets forth, and on which his equity is grounded, may be briefly indicated. He states in substance that in 1867, George W. Swan, John R. McArthur, William McArthur and John F. McDonald were in partnership under the name of McArthur & Co.; that the members of the firm owned as tenants in common a large amount of pine lands in the counties of Cheboygan, Presque Isle, Otsego and Em met, in this State, and mills, water power and other real property, Buck v. Smith. the said Swan and John R. McArthur holding an undivided half; that the firm also owned and held there a very large and valuable personal property, consisting, among other things, of lumber, timber, shingles, store goods, teams, tools, machinery and the like, suitable for large lumbering operations; that the firm were carrying on the business of manufacturing and selling lumber on an extensive scale, using the pine on the lands before mentioned as needed; that Smith resolved to purchase the interest of Swan and John R. McArthur and then to enter into partnership with the other proprietors, namely, McDonald and William McArthur, with the view of erecting new mills, improving the property in various ways, and carrying on the lumber business; that in contemplation of such purchase and the institution of such firm, it was understood between complainant and Smith that the purchase, when effected, should be for their joint benefit; that Smith should advance the required funds for the purchase, and so much as should be necessary in carrying on the operations of the expected partnership, and should take the title; that complainant, being skilled and having experience in such business, should be a partner in the contemplated firm, and should put in his special skill and his services, and in that way, and from the profits and gains in the business, make up his share of the outlay; that complainant was to remove to Cheboygan and be an active copartner in the new firm, and be the general manager of the business, and exercise the general control and supervision. It is then stated that Smith proceeded to buy the half interest of Swan and John R. McArthur, and on the 26th of November, 1867, took a conveyance in his own name, and that shortly afterward, and on the 10th of January, 1868, he and complainant, in furtherance of the foregoing understanding between them, entered into the following written agreement: "Memoranda of agreement made this 10th day of January, A. D. 1868, by and between William Smith, of Westfield, New York, of the first part, and Moses Buck, of East Saginaw, Michigan, of the second part, witnesseth: That said Smith claims to own and be possessed in fee simple of certain lands, water power and personal property, same purchased of John R. McArthur and George W. Swan by their deed of November 26, 1867. Now the said Smith hereby agrees to sell and convey, by deed of quit-claim, to said Buck, one-half of said purchase, being one-fourth part of all said |