Barton v. Thaw
Barton v. Thaw
Opinion of the Court
Opinion by
The learned court below has given such convincing reasons for the conclusions upon which the decree in the present casé was based, that we can add nothing of value to the discussion of the legal principles involved. The covenant in question was declared to be void because in violation of the rule against perpetuities. We quite agree with the learned court below that it would be difficult to conceive any case which could be deemed more violative of the rule and a greater hindrance to alienation than the one at bar. The case turns very largely upon the character of the interest in the surface which the optionees took under the covenant. If it was a present, fixed and vested interest in the land the rule against perpetuities would have no application. But is a mere option to purchase land, unlimited as to time and indefinite in duration, which may be exercised in ten years, or in a hundred years, or in a thousand years, or which may never be exercised at all, depending upon the wish or pleasure of the optionee, a present vested interest? To ask this question would seem to answer it. In no proper legal sense can a mere privilege of exercising a future right to purchase be deemed a present vested interest in land. The optionees may never exercise their option, and failing to do so, they would never acquire a vested interest in the land. While the precise question has not been raised or decided in
To elaborate the discussion here would simply mean a reiteration of what has been, so well said by the learned court below and this we refrain from doing.
Decree affirmed at cost of appellants.
Reference
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- Real property — Rule against perpetuities — Options—Construction — Intention—Void option — Cloud on title — Equity. 1. The rule against perpetuities is aimed at the suspension of alienation by compelling such a limitation of future interests as will require them to vest, if at all, within a certain time. The rule promotes alienability by destroying future interests and is the most important restraint which the law places upon the right to create future interests. 2. Tbe rule against perpetuities is not a rule of construction but a peremptory command of law. Its object is to defeat intention,, and a contract providing for the creation of a future interest in property is first to be construed as if the rule did not exist and then to the provision so construed, the rule applies. 3. An option is a unilateral agreement binding upon the optionor from the date of its execution, but it does not become a contract inter partes in the sense of an absolute contract to convey on the one side and to purchase on the other until exercised by the optionee ; it is not a sale but a right of election in the party taking the option to exercise the privilege of purchase and only when that privilege has been exercised by acceptance in the manner specified in the instrument creating the option does it become an absolute contract binding upon both parties. 4. Where the event upon which an estate is to arise, such as the acceptance of an option to purchase, is so uncertain that it may transpire at some indefinite time in the future, or may never transpire at all, the interest created by the option is not vested but contingent and within the rule against perpetuities. 5. A bill in equity to remove a cloud upon title alleged that plaintiffs were the owners of certain land; that their predecessors in title had granted the coal underlying such land, by a deed containing a covenant that in case the grantee, his heirs or assigns “should at any future time whatsoever desire to purchase any of said land in fee simple, then the Said parties of the first paTt for themselves, their heirs or assigns hereby covenant and agree to sell the same to the said parties of the second part, their heirs or assigns at a price not exceeding $100 per acre”; that defendants were the successors in title of the grantees of such deed; that the said covenant was void but was a cloud on the plaintiffs’ title, and prayed that such covenant be cancelled. The court after hearing on bill and answer decided that the covenant was but an option to purchase, which under its terms, could be exercised at any time in the future, and was void, as being in violation of the rule against perpetuities and awarded the relief prayed for. Held, no error.