Wills v. Pierce - 208 Ga. 417, 67 S.E.2d 239 (1951)

Rule:

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.

Facts:

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 [J.C. Wills] . . his family or heirs, the same shall revert to [J.W. Tilley’s] . . estate and go as directed by [J.W. Tilley’s] . . will." J.W. Tilley’s died testate in 1924, and under the terms of his will the petitioners are the owners of the reversionary interest in the realty. J.C. Wills 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.

Issue:

Did the trial court err in overruling the demurrer?

Answer:

Yes.

Conclusion:

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. 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.