needed, as here all lands are held in allodium, and with us no such right of escheat or possibility of reverter ever existed in the party conveying the estate. Here all sovereignty is in the state, and escheat can only accrue to the state as the sovereign. Therefore, the question of the right to impose conditions or restrictions upon alienation stands upon common-law reasons, as it has stood in England since the statute quia emptores. See the able and elaborate opinion of Mr. Chief Justice Ruggles in De Peyster v. Michael, 6 N. Y. 467, [57 Am. Dec. 470], for a complete commentary upon this topic.

Ever since the statute quia emptores the tying up of real property has been regarded as an evil that is incompatible with the free and liberal circulation of property as one of the inherent rights of a free people. In order to prevent this evil two doctrines were established: One that all interests should be alienable; the other that all interests. must arise within certain limitations of time. The latter doctrine is known as the rule against perpetuities. It is the first doctrine with which we are concerned.

The rule that conditions restraining alienation, when repugnant to the estate conveyed, are void, is founded on the postulate that the conveyance of a fee is a conveyance of the whole estate, that the right of alienation is an inherent and inseparable quality of an estate in fee simple, and that, therefore, a condition against alienation is repugnant to, and inconsistent with, the estate conveyed. To transfer a fee and at the same time restrain the free alienation of it is to say that a party can grant and not grant, in the same breath. But the rule is not founded exclusively on this principle of natural law. It rests also on grounds of clear public policy and convenience in facilitating the exchange of property, in simplifying its ownership and in freeing it from embarrassments which are injurious not only to the possessor, but to the public at large.

In the deed in question here, the restraint upon alienation is not absolute, either as to persons or time. As to persons, it is partial; as to time, it is temporary. The restraint, as to persons, is limited to three classes, namely, persons of African, Chinese, and Japanese descent. As to time or duration, the restraint is limited to a little over fourteen years, or until January 1, 1925.

The decisions respecting the validity of a restraint that is only partial as to persons or temporary as to time are in a state of conflict and hopeless confusion. Some, particularly the Kentucky cases, which admittedly are against the weight of authority (Bonnell v. McLaughlin, 173 Cal. 216 [159 Pac. 590]), hold that if the restraint be total as to persons but only temporary as to the time of its duration, and the time is not unreasonable, the condition is valid. (Lawson v. Lightfoot, 27 Ky. Law Rep. 217, [84 S. W. 739].) Others hold that if the restraint be total as to persons but temporary as to time, the condition is utterly void, no matter how short the time may be. (Mandlebaum v. McDonnell, 29 Mich. 78, [18 Am. Rep. 61]; Latimer v. Waddell, 119 N. C. 370, [3 L. R. A. (N. S.) 668, and note, 26 S. E. 122]; O'Connor v. Thetford (Tex. Civ. App.), 174 S. W. 680.) And there are other cases that hold that if the restraint be partial as to persons, and the restricted class is so large that the restraint is unreasonable, the condition is void. (Manierre v. Welling, 32 R. I. 104, [Ann. Cas. 1912C, 1311, 78 Atl. 507].) Still others hold, or seem to hold, that any restraint whatever as to persons, however partial, is void. (Barnard's Lessee v. Bailey, 2 Harr. (Del.) 56; Williams v. Jones, 2 Swan (Tenn.), 620. See, also, Bradford v. Leake, 124 Tenn. 312, [Ann. Cas. 1912D, 1140, 137 S. W. 96].)

[3] We think that, on principle, any restraint on alienation, either as to persons or time, is invalid. And while there is no case in this state directly in point-or at least none to which our attention has been called-there is one case in which the supreme court says, though by way of dictum, that any restraint whatever is void. (Murray v. Green, 64 Cal. 367, 368, 128 Pac. 118].)

In all, or almost all, of the cases in which it is held that a condition restraining alienation for any time, however short, is void, the restraint was total as to persons, though but partial or temporary as to time. We think, however, that the reasoning whereby those courts reach the conclusion that a condition is void that imposes a total restraint upon the power of alienation for any time, however short, applies with equal force to a condition that imposes a restraint that is but partial as to the persons or classes of persons to whom the title may not be conveyed, and that

the reasoning in those cases leads logically and inevitably to the conclusion that any restraint whatever on alienation, either as to persons or time, is void. In O'Connor v. Thetford, supra, the Texas court of civil appeals, speaking of the generally accepted doctrine that the suspension of the power of alienation for any time, however short, is void, says that it "is the more logical and presents no difficulties such as may be encountered in determining what is a reasonable time." In Mandlebaum v. McDonnell, 29 Mich. 78, [18 Am. Rep. 61], the court, speaking of the same rule, propounds these these pertinent questions: "Who can say whether the time is reasonable, until the question has been settled in the court of last resort; and upon what standard of certainty can the court decide it? Or depending, as it must, upon all the peculiar facts and circumstances of each particular case, is the question to be submitted to a jury?" These questions are equally pertinent when propounded with respect to a restraint on alienation that is partial as to persons.

There are two English cases-Doe v. Pearson, 6 East, 173, and In re Macleay, L. R. 20 Eq. 186-that lend some support to the doctrine that if the restraint on alienation be not total as to persons, the condition is valid. The authoritative force of those cases, however, was considerably shaken by the decision in the later case of Atwater v. Atwater, 18 Beav. 330. For an elaborate and learned discussion of the question, see Manierre v. Welling, 32 R. I. 104, [Ann. Cas. 1912C, 1311, 78 Atl. 507], where, however, the restraint was so general and so nearly absolute in character as to amount to practically a total inhibition on the power of alienation.

If, as is held by the majority of the cases, supported by principle and reason, a condition is void that imposes a total restraint on the power of alienation for any time, however short, then why should not a condition be void that imposes any inhibition on alienation to persons, however few, or to classes of persons, however limited the classes may be? Upon what principle can a restraint partial as to persons and a restraint partial as to time be put upon different bases? In one case, as in the other, the rule that any limitation, however partial, voids the condition, is the more logical, and presents no difficulties such as necessarily must be encountered in

determining whether the restriction be reasonable or otherwise. The right of alienation is an inherent and inseparable quality of an estate in fee simple. (Potter v. Couch, 141 U. S. 315, [35 L. Ed. 721, 11 Sup. Ct. Rep. 1005, see, also, Rose's U. S. Notes].) Therefore, any and all restraints on alienation necessarily must tend to deprive the granted estate of an incident inseparably inherent in it, and necessarily must be repugnant to and inconsistent with the grant, and, as such, void. "The general rule is that, where a devise is made in fee, either of a legal or an equitable interest, all limitations tending to deprive the estate of any of the incidents appertaining to the interest created are held to be repugnant to the devise, and void. To transfer a fee, and at the same time to restrict the free alienation of it, is to say that a party can give and not give, in the same breath." (Johnson v. Preston, 226 Ill. 447, [10 L. R. A. (N. S.) 564, 80 N. E. 1001].)

If the continuation of the estate in the grantee may be made to depend upon his not selling or leasing to persons of African, Chinese, or Japanese descent, it may be made. to depend upon his not selling or leasing to persons of Caucasian descent, or to any but albinos from the heart of Africa or blond Eskimos. It is impossible, on any known principle, to say that a condition not to sell to any of a very large class of persons, such as those embraced within the category of descendants from African, Chinese, or Japanese ancestors, shall not be deemed an unreasonable restraint upon alienation, but that the proscribed class may be so enlarged that finally the restriction becomes unreasonable and void. Where shall the dividing line be placed? What omniscience shall tell us when the restraint passes from reasonableness to unreasonableness? Who can know whether he has title to the land until the question of reasonableness has been passed upon by the court of last resort? No matter how large or how partial and infinitesimal the restraint may be, the principles of natural right, the reasons of public policy, and that principle of the common law which forbids restraints upon the disposition of one's own property, are as effectually overthrown by the one as by the other. The difference is of degree, not principle.

Though there is no case in this state to which our attention has been called that is directly in point, we think

the reasoning of the California cases leads necessarily to the conclusion that a condition against alienation such as we have presented to us in this case is void. (See Mur

ray v. Green, 64 Cal. 367, 368, [28 Pac. 118]; Maynard v. Polhemus, 74 Cal. 141, [15 Pac. 451]; Prey v. Stanley, 110 Cal. 423, [42 Pac. 908], and Bonnell v. McLaughlin, 173 Cal. 216, [159 Pac. 590].) In Murray v. Green the court expressly declares against the doctrine that any partial restraint on alienation may be valid, saying: "But it is claimed that while a general restraint upon alienation is bad, a partial restraint is valid. But is it not obvious that in case of a grant in fee simple, where there is no possibility of reverter, any restraint whatever on the power of alienation would be repugnant to the interest created by the grant? In commenting upon the clause in which Littleton says: 'But if the condition be such that the foeffee shall not alien to such a one, naming his name, or to any of his heirs, or of the issue of such a one, etc., or the like, which conditions do not take away all power of alienation from the feoffee, etc., there such condition is good,' Chancellor Kent says: 'But this falls within the general principle, and it may be very questionable whether such a condition would be good at this day.' (4 Kent's Commentaries, 131.)"

The counsel who has appeared as amicus curiae has filed a brief in support of the validity of the condition against selling to persons of African descent, and has cited, among other cases, Cowell v. Colorado Springs Co., 100 U. S. 55, [25 L. Ed. 547, see, also, Rose's U. S. notes]. In that case it was held that a condition in a deed that intoxicating liquors shall not be manufactured or sold on the granted premises, and that if the condition be broken the title shall revert to the grantor, is not repugnant to the estate granted, and the condition is not invalid. There the condition in the deed made no attempt directly to restrict the power of alienation, but only placed a restriction upon use of the premises, not upon alienation. There is a clear distinction between a restriction on use of the premises by the grantee in a deed conveying the fee, imposed by a condition or covenant whereby reasonable building restrictions are created, and a direct restraint on alienation. It is true, a restriction upon use may narrow the

42 Cal. App.-11