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void all conditions which absolutely prohibited the alienation of estates in fee, permitting grantors to impose limitations upon the power of alienation in the grant of any estate less than a fee. So, also, when the courts, by judicial legislation, developed the law of uses and executory devises, the rule against perpetuity was adopted, which prohibited the suspension of alienation by the creation of contingent estates, beyond a life or lives in being, and twenty-one years thereafter. The same limitation rests in effect upon the creation of contingent remainders. A constant change of ownership has always been considered salutary to the public welfare.
Inasmuch, therefore, as the private property in land, already acquired, has been procured subject to no condition against alienation, the right of alienation is as much a vested right as the right of possession or the right of enjoyment; and a law, which materially diminishes this right of alienation, without having for its object the prevention of injuries to others, or which takes away the right altogether, is an unconstitutional interference with vested rights. That the right of free alienation is a vested right, which cannot be modified or taken away by subsequent legislation, while the land remains in the possession of the present landholders, cannot be questioned ; and it is equally certain that the government may, in its future grant of the public lands to private individuals, absolutely prohibit the alienation of these lands without the consent of the State : but it is exceedingly doubtful, whether it is constitutional or unconstitutional to apply the statutory prohibition to lands, already the property of private persons, after they have been sold to others, subject to the statutory restriction upon alienation. There is certainly no interference with any vested right of the subsequent purchaser,
| Tiedeman on Real Prop., $ 544; 2 Washb. on Real Prop. 580. 2 Tiedeman on Real Prop., § 417; 2 Washb. on Real Prop. 701, 702.
but there may be some ground for the claim that the operation of the statute would diminish materially the chances of sale, and consequently would infringe upon the vested right of alienation of the present owners, in a manner not permitted under constitutional limitations. But this position does not seem to be tenable. While the vested right of alienation cannot by subsequent legislation be taken away altogether, an indirect restriction upon the right, resulting from the denial of the right of alienation to subsequent purchasers and the consequent diminution of sales, would not be properly considered a deprivation of a vested right. It is no more so than the effect of a statute, which prohibited the purchase by one person of more than a specified quantity of land. In both cases, the exercise of police power is reasonable, and the indirect burden imposed upon present owners is but what may be expected from the exercise of the ordinary police power of the State.
While the vested right of alienation cannot be taken away altogether, its exercise may be subjected to reasonable regulations, which are designed to prevent the practice of fraud, and to facilitate the investigation of titles.
The statutory regulation of conveyancing is in some of the States very extensive, providing for almost every contingency, while in others the legislation has been limited. But in all the States it will be found to be necessary, in order to effect a valid transfer, to comply with certain statutory requisitions. It is not necessary to speak of them in detail. They all have the same general object in view, and their constitutionality has never been and cannot be questioned. These requirements do not deprive the land owner of his right of alienation. They only regulate his exercise of the right, with reasonable objects in view. But is hardly necessary to state that such statutory regulations can only have a lawful application to future conveyances. Laws for
the conveyance of estates are unconstitutional as far as they affect conveyances already made.
But the vested right of alienation which the land owner acquires as a natural incident of his property rests upon
the natural power, in the absence of lawful restrictions, to give away or sell what belongs to him. The natural right can only exist as long as his natural dominion over the property lasts, viz. : during his life. His natural dominion over his property terminates with his death. He may sell or give away, as he pleases, as long as he does not violate the rights of creditors, up to the last moment of his life, and his right of alienation inter vivos cannot be taken away by statute; but after death he ceases to exercise a natural dominion over his property, and if he has any power of disposition after death, it must rest upon positive law, and must change or disappear with the modification or repeal of the law. It is therefore held that no one has a vested right to dispose of lands by will, in accordance with the laws in force when he acquired them. His right to devise depends upon the laws in existence at his death. The new statute may be made to apply to future purchasers of lands, and not to present owners, but it will apply to the latter, if they are not expressly excluded from the operation of the statute.?
s 120. Involuntary alienation.- Except the power which the court of chancery possesses in certain cases, and which of course is subject to repeal or regulation by the legislature, the power to effect an involuntary alienation rests upon legislative enactment. As a general proposition, the legislature cannot divest one of his vested rights against his will. It can enact laws for the control of property and of its disposition, but it cannot take the private property of one man and give it to another. But there are certain well-known exceptions to this general rule, where the interference of the legislature is necessary to save and protect the substantial interests of individuals on account of their own inability to do so, or to promote the public good. In some of the State constitutions there is a provision against the enactment of special laws, operating upon particular individuals or upon their property. In those States, therefore, involuntary alienation can only be effected by a general law, applicable to all persons under like circumstances. But in the absence of such a constitutional provision, the transfer of lands may be made by special acts of the legislature, as well as under a general law.” But wherever such a transfer by special act of the legislature would involve the assumption of judicial power, it would be generally held void, under the common constitutional provision which denies to the legislature the exercise of such powers. 3
Greenough o. Greenough, 11 Pa. St. 489; Reiser o. Tell Association, 39 Pa. St. 137; James v. Rowland, 42 Md. 462.
3 " A party who acquires property does not acquire with it the right to devise such property according to the law as it exists at the time he acquires it. Wills and testaments, rights of inheritance and succession are all of them creatures of the civil or municipal law, and the law relating to or regulating any of them may be changed at the will of the legislature. But no change in the law made after the death of the testator or intestate will affect rights which became vested in the devisee, heir or representative by such death.” Sturgis v. Ewing, 18 n. 176. See Emmert o. Hays, 89 Ill. 11.
One of the most important, and the most easily justified, cases of involuntary alienation, is one affecting the property of persons under legal disability. Where persons are under a legal disability which prevents them from making a
1 Wilkinson v. Leland, 2 Pet. 658; Adams v. Palmer, 51 Me. 494; Com. monwealth v. Alger, 7 Cush. 53; Varick v. Smith, 6 Paige, 159; Matter of Albany Street, 11 Wend. 149; John and Cherry Street, 19 Wend. 676; Taylor v. Porter, 4 Hill, 147; Heyward v. Mayor, 7 N. Y. 324; Bowman o. Middleton, 1 Bay, 252; Russell v. Rumsey, 35 Ill. 374; Good o. Zercher, 12 Ohio, 368; Deutzel u. Waldie, 30 Cal. 144.
Sohier v. Mass. Gen. Hospital, 3 Cush. 483; Kibby o. Chitwood, 4 B. Mon. 95; Edwards o. Pope, 4 III. 473.
8 Rice v. Parkman, 16 Mass. 326; Jones o. Perry, 10 Yerg. 59; Lade o. Dorman, 4 III. 238; Edwards v. Pope, 4 Ill. 473.
valid sale of their property, and such sale and reinvestment of the proceeds of sale are necessary for the conservation of their interests, the State, in the capacity of parens patriæ, has the power to authorize a sale by the guardians of such persons. This may be done by special act or by a general law. The law which imposes the disability may very properly provide against the injurious consequences of such disability. But the property of persons who are not under a disability cannot be sold by authority of the courts, on the ground that such a sale would be beneficial. In most of the States there are general laws authorizing the courts to empower the guardians of minors, lunatics and other persons under disability, to make sale of the real property of such persons.
The law also provides for sales of real property by the administrators and executors of the deceased owner. Where one dies without having made proper provision, for such contingencies, it is often necessary that some one should be authorized to make a sale of the lands for the purpose of making an effective administration, and to protect and satisfy the claims of those who are interested in the property. If the deceased leaves a will he very often, perhaps generally, empowers the executor to make sale of the land, when necessary. Where the executor has the testamentary power, his sales are presumed to be under this power, and there is no need of a resort to the statutory power. But these express testamentary powers are supplemented by statutes, which authorize courts of pro
i Sobier v. Mass. Gen. Hospital, 16 Mags. 326; 8. c. 3 Cush. 483; Davidson v. Johonot, 7 Metc. 395; Cochran v. Van Surlay, 20 Wend. 365; Estep v. Hutchman, 14 Serg. & R. 435; Doe o. Douglass, 8 Blackf. 10; Kirby o. Chitwood, 4 B. Mon. 95; Shehap v. Barnett, 6 B. Mon. 594; Jones
Perry, 10 Yerg. 59.
3 Wilkinson v. Leland, 2 Pet. 658; Adams o. Palmer, 51 Me. 494; Sohier 0. Mass. Gen. Hospital, 3 Cush. 483; Heyward v. Mayor, 7 N. Y. 324; Ervine's Appeal, 16 Pa. St. 256; Palairet's Appeal, 67 Pa. St. 479. s Payne v. Payne, 18 Cal. 291; White o. Moses, 21 Cal. 44.