Opinion
33665.
DECIDED JULY 16, 1951.
Partition; from Coffee Superior Court — Judge Thomas. February 19, 1951.
Gibson Maddox, for plaintiff in error.
D.C. Sapp, Marshall Ewing, Arthur C. Farrar, contra.
1. Conditions repugnant to the estate granted are void. Accordingly where, as here, a deed to land conveys a fee-simple title to the grantees in the granting clause thereof and, following the description in the body of the deed, also contains a stipulation as follows: "Said property cannot be sold or disposed of without the written consent of the party of the first part," such deed conveys an absolute estate to the grantees which entitles them to partition the property.
2. Under the provision of the statute of frauds (Code § 20-401 (4)) any contract for the sale of lands or any interest in or concerning them must be in writing signed by the party to be charged therewith or some person by him lawfully authorized. Accordingly, a parol contract whereby the grantees agree to give the grantor an option to repurchase the property is within the statute of frauds and unenforceable.
DECIDED JULY 16, 1951.
J. H. Crenshaw Jr. and Mrs. Lillian K. Crenshaw filed an action for partition in the Superior Court of Coffee County as to land jointly owned by them and Mrs. Mattie K. Alderman in that county, plaintiffs and defendant each owning an undivided half interest. The defendant filed an answer setting out that the plaintiffs were her sister and brother-in-law respectively; that they had been tenant farmers and she had purchased the land, which was farm land comprising the eastern half of a land lot in Coffee County, in order that her sister and brother-in-law might have a home; that she agreed to allow them to cultivate a portion of the land and save the money so received by them until they had obtained sufficient funds to purchase a half interest in the property; that they did pay her $3485, the consideration named in the deed; that it was the understanding when she deeded them the one-half undivided interest in the premises that she should have the right to repurchase it from them at this same price if they ever wished to sell their half interest or dispose of the land, but that the land was never to be divided; that the defendant wishes to repurchase the land and tenders the amount named. The deed, which was a warranty deed conveying in the granting clause a half interest from the defendant to the plaintiffs, contains, following the description of the land in the body thereof, the following stipulation: "Said property cannot be sold or disposed of without the written consent of the party of the first part." The prayers are that the plaintiffs be enjoined from pursuing this action and that a decree be entered requiring them to sell their interest in the land to the defendant for the purchase-price, as they have elected to dispose of it.
It was agreed that the questions of law involved in the answer should be submitted to the court under the pleadings. Upon hearing, the judge found that the restrictive covenant in the deed was void as repugnant to the grant and a restraint against alienation; that parol evidence relative to the allegations that the plaintiffs had orally agreed to reconvey the land to the defendant at the purchase-price if they desired to dispose of it would be inadmissible as seeking to vary the terms of a written instrument and as being a parol contract for the sale of lands, and in view of these rulings ordered the issuance of a writ of partition.
The bill of exceptions was directed to the Supreme Court, which has transferred the case to this court on the ground that this court and not the Supreme Court has jurisdiction. Partition is not an equitable proceeding unless the title of one of the parties is brought into question, or unless one of the parties seeks equitable relief by appropriate proceeding. Nor is this case converted into an equity case by the prayers for equitable relief in the defendant's answer, since these prayers are not warranted by the averments of the petition, are purely defensive in ranted by the averments of the petition, are purely defensive in nature, and the sustaining thereof would result in a general verdict in favor of the defendant in any case. See Alderman v. Crenshaw, 208 Ga. 71 ( 65 S.E.2d 178).
1. A condition in a deed prohibiting a tenant in fee simple from alienating the land conveyed thereby is repugnant to the estate limited and is absolutely void. Farkas v. Farkas, 200 Ga. 886 (2) ( 38 S.E.2d 924); Stamey v. McGinnis, 145 Ga. 226 ( 88 S.E. 935); Crumpler v. Barfield, 114 Ga. 570 ( 40 S.E. 808); Freeman v. Phillips, 113 Ga. 589 ( 38 S.E. 943); Tiffany, Law of Real Property, 3rd ed., § 198; 26 C.J.S., Deeds, § 145. Code § 85-903 provides that conditions repugnant to the estate granted are void. An estate in fee simple, such as that conveyed by this deed, carries with it as a natural incident the right to sell or otherwise dispose of the land conveyed. A deed may contain reservations or exceptions as to a part of the estate in favor of the grantor, and he may thereby reserve some part of the estate to himself when proper words are contained in the granting clause, and the intention to make such reservation or exception clearly appears. Grant v. Haymes, 164 Ga. 371 ( 138 S.E. 892). Thus, it has been held that where in the granting clause of the deed, or in the sentence immediately following the same, the grantor reserves the right of decision as to whether the property shall be sold, and to whom, such a restriction is valid. Iowa Farm and Credit Corp. v. Halligan, 214 Iowa 903 ( 241 N.W. 475); Harman v. Hurst, 160 Md. 96 ( 153 A. 24). Here the restriction against alienation is not a part of the granting clause, nor placed in juxtaposition thereto. The general rule is that a restriction against alienation without the consent of the grantor or another is void. See Davis v. Geyer, 151 Fla. 362 ( 9 So.2d, 727), and cases there cited; Northwest Real Estate Co. v. Serio, 156 Md. 229 ( 144 A. 245); Hill v. Gray, 160 Ala. 273 ( 49 So. 676). And this is true even though the parties are co-tenants. Anderson v. Broadwell, 199 Cal.App. 150 ( 6 P.2d 267); Smith v. Smith, 290 Mich. 143 ( 287 N.W. 411, 124 A.L.R. 215). Although some force is lent by the A.L.R. annotation following the Smith case to the defendant's contention here that the rule holding restrictions against alienation of property should not be given the same force where the parties to the deed are tenants in common, since the opposite party, as a co-tenant, has a greater interest in the land than would a grantor who had parted with all interest in the property other than that contained in any valid restrictions in the deed itself, this contention does not appear to be upheld by the cases cited therein. It is noted that in Wright v. Hill, 140 Ga. 554 ( 79 S.E. 546), where the testator created a life estate in his children with a contingent remainder over and one of the children thereafter died, the one-seventh undivided interest vested in the children of the deceased child and they were entitled to prevail in a partitioning proceeding brought against the other children of the deceased who were their co-tenants, regardless of the stipulation in the will that the estate was not to be divided until the issue of such co-tenants became of age, because the effect of such provision was to deprive the plaintiffs, who were themselves of age, of the fee-simple estate vested in them, and such stipulation was therefore void. The fact that the heirs were tenants in common did not alter this situation.
It has always been the rule in Georgia that a restriction in a deed inhibiting alienation is void. See Farkas v. Farkas, supra. We hold that this rule applies to a restriction in a deed inhibiting alienation without the consent of the grantor, and that this is true even though the grantor is a tenant in common. Had the reservation been retained in the granting clause, or had the deed contained a valid condition subsequent or reverter clause in the event of such alienation we might reach a different result, but the mere statement contained in the body of the deed that it is not to be sold or disposed of without the written consent of the grantor, where the granting and habendum clauses convey a fee-simple estate, is void, and the court did not err in so holding.
2. There was no written option to repurchase, either in the deed or by an agreement is connection therewith. The defendant attempts to set up an oral agreement to the effect that, should the plaintiffs wish to sell their interest in the lands, they must first offer it to the grantor at the original purchase-price. Such an agreement is obviously unenforceable under the statute of frauds (Code, § 20-401 (4)). See Neely v. Sheppard, 185 Ga. 771, 783 ( 196 S.E. 452); Robinson v. Odom, 35 Ga. App. 262, 263 (4) ( 133 S.E. 53).
The trial court did not err in denying the prayers of the plaintiff's answer and ordering that a writ of partition issue.
Judgment affirmed. MacIntyre, P. J., and Gardner, J., concur.