Bonnell v. McLaughlin

HENSHAW, J.

Plaintiffs, as devisees under the will of James McMahon, deceased, brought this action against the defendants to recover property, title to which vested in Thomas McLaughlin and Anna McLaughlin, his wife, under deed to them by James McMahon, plaintiffs’ testate. They charge a forfeiture of the title in the McLaughlins for their breach of a condition subsequent contained in McMahon’s deed to them. The other defendants are grantees of the McLaughlins of certain parts of the land conveyed in the McMahon deed. The complaint set up the McMahon conveyance in full, and the court sustained a general demurrer to the complaint, and from the judgment which followed this appeal has been taken.

The deed of McMahon to these defendants was, so far as is here important, in the following language: For a money consideration expressed as being ten dollars, McMahon “does by these presents grant, bargain, sell, convey and confirm, unto the said parties of the second part, and to their heirs and assigns, forever, subject to the conditions herein named, all that certain lot, piece or parcel of land,” etc. “This grant is made upon the express condition and limitation, that said second parties or either of them, shall not sell, hypothecate, mortgage, convey or alienate the whole or any portion of said premises during their natural lives but they may make testamentary disposition of the same. Together with all and

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singular the tenements, hereditaments and appurtenances thereunto belonging, or in any wise appertaining, and the reversion, and reversions, remainder and remainders, rents, issue and profits thereof. To have and to hold all and singular the said premises together with the appurtenances, unto the said parties of the second part, and to their heirs and assigns forever, subject to the limitation and conditions herein expressed.’’

The general demurrer was sustained by the court under the conviction that the condition subsequent contained a restriction repugnant to the grant itself, and of the soundness of its conclusion in this regard no doubt can be entertained. In this state it has been declared that where the granting clause in a deed purports to convey title in fee simple and is followed by a clause prohibiting the grantee from conveying without the consent of the grantor, the latter clause is repugnant to the interest created by the former, and being in restraint of alienation is void. (Civ. Code, sec. 711;