GRAYSON V. GRAYSON. where a covenant by the grantee of land that he, his heirs and assigns, would not alien, sell, or assign to anyone except his or their child or children, without license of the grantor, was held McCawley C.J. repugnant to the fee simple, the Court approving of Attwater v. Attwater (1), and dissenting from Doe v. Pearson (2). The decisions in Doe v. Pearson (2) and In re Macleay (3) have been subjected to adverse criticism (a) by Pearson J.-Re Rosher (4); (b) Gray on Restraints, 2nd Ed., p. 31; and (c) Charles Sweet (33 Law Quarterly Review 236, 342). Doe v. Pearson (2) is questioned, because it rests on the misinterpretation of an anonymous case in Dalison, 58, and Daniel v. Uply (5), and cannot be brought within the exceptions recognised by Coke, Littleton, or Touchstone. In the anonymous case there was a devise to the testator's widow to dispose and employ it on herself and her sons at her will and pleasure." The Court of Common Pleas held that she took a fee, and not a life estate; two of the three Judges held that it was a fee on condition “ so that she could not grant the land to a stranger, but she must hold it or give it over to one of her sons.” Gray remarks that it does not appear whether the point was material or whether the validity of the devise was questioned. Such a devise would now probably be construed as a devise in fee upon trust. Sugden, Powers, 8th Ed., 106; Sweet, supra, p. 252. Daniel v. Uply (5) is thus referred to by Gray (p. 26) :— 'There was a devise of a house to the testator's widow' to dispose at her will and pleasure, and to give it to any of my sons which she pleases.' She conveyed it to X., one of the testator's sons. It was held by the Court of King's Bench that X. had a good title. Two of the Judges thought that the widow took a life estate with power of conveying in fee, and the other two thought that she took a fee simple on condition that she should not alien except to her sons. As the condition was not broken (even if we agree with the latter two Judges that there was a condition), there was no occasion to question its validity; and nothing is said about it." Sweet (supra, p. 249, et seq.) gives what seem to me sufficient (1) 1853, 18 Beav. 330. (2) 1805, 6 East. 173. (3) 1875, L.R. 20 Eq. 186. 4) 1884, 26 Ch.D. 801. (5) Latch 9, 39, 134; Noy 80; S.C. sub. nom. Daniel v. Ubley, Wm. Jones 137. GRAYSON . in Noy and in Latch both bear this out. It appears that the real decision of the Court was that the wife took a life estate with McCawley C.J. authority to convey the fee-Dike v. Ricks (1), where Daniel v. Uply (2) is cited as V. Davie v. Urber. Davie v. Urber. On this point, see the Uply (2) by Mills J. in Blackburn v. Gray remarks (at p. 30), The authorities, it will be seen, are in hopeless conflict. The rule which naturally suggests itself is that a condition is good if it allows of alienation to all the world, with the exception of selected individuals or classes; but is bad if it allows of alienation only to selected individuals or classes. Williams on Settlements, 134, 135. But the test that a condition is bad only when all alienation is substantially restricted is supported by the weighty authority of Lord Ellenborough and the Judges of the King's Bench, as well as of Sir George Jessel. But in favour of the test that a condition against alienation is bad, if alienation is restricted to particular individuals or a particular class it may be observed: (i.) Doe v. Pearson (4) was not decided till 1805, and there was nothing in the earlier authorities which required it to be decided as it was, for from the loose note in Dalison it does not appear whether there was any breach of condition, and in Daniel v. Uply (2), there was no breach, and half the Judges thought there was no condition: (i.) In re Macleay (5) is based largely on Doe v. Pearson (4), and has been doubted in Re Rosher (6): (iii.) the decision of Lord Romilly in Attwater v. Attwater (7) was approved and followed by the Court of Queen's Bench in Ireland in Billing v. Welch (8)." He adds that the decisions in America all disagree with Doe v. Pearson (4). In re Macleay (5) was questioned in Dawkins v. Penrhyn (9); see 26 C.D. at p. 808; Williams on Settlements, 134. In In re Macleay (5) Jessel M. R. suggests that the test is whether the condition takes away the whole power of alienation substantially; it is a question of substance, and not of mere form." Dealing with the particular condition in that case he says, "First, it is limited as to the mode of alienation, because the only prohibition is against selling. There are various modes (1) 1633, Cro. Car. 335. (2) Latch 9, 39, 134; Noy 80 ; S.C. sub. nom. Daniel v. Ubley, Wm. Jones 137. (3) 1903, 33 Can. S.C.R. 90. (5) 1875, L.R. 20, Eq. 186. GRAYSON V GRAYSON. of alienation besides sale; a person may lease, or he may mortgage, or he may settle; therefore, it is a mere limited restriction on alienation in that way. Then, again, it is limited as regards McCawley C.J. class; he is never to sell it out of the family, but he may sell it to any one member of the family. It is not, therefore, limited in the sense of there being only one person to buy. The will shows there were a great many members of the family when she made her will; a great many are named in it; therefore, you have a class which probably was large, and certainly was not small. Then it is not strictly speaking limited as to time, except in this way, that it is limited to the life of the first tenant in tail." Pearson J., in In re Rosher (1), in criticising the decision, asks what is the principle to be deduced from the cases. · Is it that there may be a condition that, if you alienate, you must alienate to a member of your own family, or that you must look to the number of individuals to whom the alienation is permitted, or when there are a number of individuals (not knowing at the present moment what that number may be), am I to inquire whether they are able, or likely to be willing, to purchase the property to which the condition is attached? If they are able and willing to purchase the property, am I to say that the condition is good, and if from their poverty they are unable, or from other circumstances are unwilling, am I to say that the condition is bad? It seems to me that the adoption of any such rule as that would produce the greatest uncertainty and confusion; in fact, it would be absolutely impossible for any Judge to apply such a rule to any case which might come before him, unless the facts of the case were absolutely identical with those of some previously decided case.” Sweet considers that as Doe v. Pearson (2) and Re Macleay (3) were decided under a misapprehension as to the point involved and decided in Daniel v. Uply (4), those two cases should be left out of the reckoning. But even assuming Doe v. Pearson (2) to be based upon erroneous reasoning, am I at liberty to go contrary to it? Whether it would have been followed by Jessel M.R., had the cases upon which it rested been closely examined, is doubtful, but he considered that it was too late to alter it, even when Attwater He (6) analyses the decision (4) 1625, Wm. Jones 137. (5) 1853, 18 Beav. 330. (6) 1875 L.R. 20 Eq., at p. 193. v. Attwater (5) was decided (1853). (1) 1884, 26 Ch.D. 801, 816. (2) 1805, 6 East. 173. (3) 1875, L.R. 20, Eq. 186. GRAYSON V. of Romilly M. R. in the last mentioned case, and comes to the conclusion that as that Judge considered, rightly or wrongly, McCawley C.J. that there was an injunction never to sell the hereditaments devised at all," he was merely distinguishing Doe v. Pearson (1). It seems to me that if the facts in Doe v. Pearson (1) are substantially the condition in this case, I should follow it; if it lays down any principle, I should apply it. To use the words of Davies J. in Blackburn v. McCallum (2), "If an exception to a general rule of law is well estabished by the cases, I am not bound to inquire into the logical sufficiency of the reasons given." And see In re Rosher (3). Does Doe v. Pearson (1) v. Pearson (1) lay down any general principle applicable to the facts of this case? If it lays down no general principle, are the facts of the present case indistinguishable? As Gray points out (p. 5), restraints are sought to be effected in two ways—(i.) The estate is given on condition that it shall not be alienated or until alienation; alienation is not illegal, but on alienation the estate is forfeited or liable to forfeiture; (ii.) the estate may be declared inalienable; if this declaration is legally valid, then the holder cannot assign it-any attempted assignment is inoperative. The provision in Allen Grayson's will against sale during the lifetime of the devisee to any person other than one of his three brothers is clearly a condition. Standing by itself it would, in my opinion, involve a substantial deprivation of the power of alienation, and, in the event of the death of the three brothers during the devisee's lifetime, leave him with no power of sale. But the provision is supplemented by the clause stating that "it is my will and desire" that there shall be no alienation to any person other than a lineal descendant of the testator" during the lives of my said sons and during a period of twenty-one years after their respective deaths." Although this clause is in form capable of being construed, not as a condition, but as a prohibition of alienation, I think it should be regarded as a condition-the injunction against alienation in Attwater v. Attwater (4) was regarded by Jessel M.R. in In re Macleay (5) as a condition. The condition should be read with and as a modification of the preceding clause, so that while the class of persons to whom the land may be alienated is extended to lineal descendants, the time (1) 1805, 6 East. 173. (2) 1903, 33 Can. S.C.R. 80. (3) 1884, 26 Ch.D. 801, at p. 817. (4) 1853, 18 Beav. 330. GRAYSON V. GRAYSON. during which alienation to strangers is prohibited is extended to twenty-one years after the death of the sons. The effect of this condition is to continue the prohibition beyond the life of the McCawley C.J. devisee; and, though the period does not offend against the Rule against Perpetuities, it is important to note that there is no decided case supporting a condition, imposed on any one beyond the first grantee or devisee, against alienation to other than a class or even against alienation to a particular person. Sweet, p. 354; Gray, p. 33. In the view I take of this case, it is not strictly necessary to decide whether Doe v. Pearson (1) is a binding authority; assuming it is binding, it cannot be taken as laying down the principle that a restraint on alienation to other than members of a class is good, and even if it could, it would not support the validity of such a condition not confined to the life of the first devisee. The highest at which it can be put is that it lays down the test of validity suggested by Jessel M.R. in In re Macleay (2), "whether the condition takes away the whole power of alienation substantiallya question of substance, and not of mere form." I think that in this case, when the area and locality of the lands devised are considered in conjunction with the limited number of persons to whom it may be sold and the duration of the restriction, the power to alienate must be regarded as restricted within limits so narrow as to constitute a substantial taking away, not of the whole power of alienation, but of a valuable portion of it, subjecting it to fetters which inevitably, by limiting the market, diminish the ordinary selling value of the land, and which might, in fact, destroy all opportunity of selling. To me, the proper view of Doe v. Pearson (1) is that it lays down no principle, and that the limits within which partial restraints of alienation may be allowed are not defined by the existing authorities. See In re Congested Districts Board (3). The facts in this case are distinguishable from those in Doe v. Pearson (1), and I am of opinion that the conditions imposed by the will involve such a substantial restriction of the power of alienation that they canrot be regarded as within the recognised exceptions to the rule against such restraints, and are therefore void. I therefore adjudge and declare that the plaintiff is entitled to an absolute interest in fee simple in the lands specifically devised to him by (1) 1805, 6 East. 175. (2) 1875, L.R. 20 Eq. 186, at p. 189. (3) 1919, 1 Ir. R. 146. |