Opinion
17557.
SUBMITTED SEPTEMBER 10, 1951.
DECIDED OCTOBER 10, 1951.
Complaint for land. Before Judge Geer. Terrell Superior Court. June 4, 1951.
Newell Edenfield and Phillip Sheffield, for plaintiffs in error.
R. R. Jones, contra.
Where a grantor conveys land in fee simple, followed by a condition that the property be used by the grantee, his family, and his heirs as a home, and that upon abandonment of said use the property shall revert to the grantor's estate, such condition is void as being repugnant to the estate granted, for the reason that it necessarily inhibits alienation of the property; and, accordingly, the present petition seeking to enforce a forfeiture for breach of the above condition was subject to demurrer.
No. 17557. SUBMITTED SEPTEMBER 10, 1951 — DECIDED OCTOBER 10, 1951.
Mrs. Walter Tilley Pierce and others filed in Terrell Superior Court, against Mrs. J. C. Wills and others, a petition, which alleged substantially the following: On December 1, 1923, J. W. Tilley by warranty deed conveyed described realty known as the Aven Home to J. C. Wills. The deed contained the clause: "The above property is conveyed to J. C. Wills [the grantee] to be used as a home by himself, his family and his heirs, upon condition that the same be used by him or them as a home and a residence, and further that upon the failure of the said condition and the abandonment of said property as a residence by [the grantee] . . his family or heirs, the same shall revert to [the grantor's] . . estate and go as directed by [the grantor's] . . will." The grantor died testate in 1924, and under the terms of his will the petitioners are the owners of the reversionary interest in the realty. The grantee died intestate in 1945, leaving as his sole surviving heirs his widow, Mrs. J. C. Wills, and two named children, who are the defendants. The condition under which the realty was conveyed has been violated, in that the defendants have abandoned the property as a home and residence, and are now residing elsewhere. The defendants in failing to use the property as a home and residence have forfeited their interest therein and petitioners as the owners of the reversionary interest elect to claim the immediate possession of the property. The petitioners prayed: that process issue; that the interest of the defendants in the realty be declared forfeited, and the fee-simple title thereof be decreed to be in the petitioners; and that the petitioners have general equitable relief.
The defendants demurred to the petition on the ground that it failed to set forth any cause of action against them. The trial court overruled the demurrer, and the defendants excepted.
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 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.