Pitt County NcArchives Court.....J. B. Galloway, Hardy Bros. V. 1892 ************************************************ Copyright. All rights reserved. http://www.usgwarchives.net/copyright.htm http://www.usgwarchives.net/nc/ncfiles.htm ************************************************ File contributed for use in USGenWeb Archives by: Connie Ardrey n/a December 23, 2011, 2:42 pm Source: N C Reports Written: 1892 Hardy Bros. v. J. B. Galloway Deed, Limitations and Conditions - Alienation - Contracts in Restraint of In a deed conveying land, the vendors "retained for themselves and their heirs and assigns the right to repurchase said land when sold," and it was further stipulated that if the vendee undertook to alien the land without giving the vendors the privilege of repurchasing, the deed was to be void: Held, that the reservation and condition were void, inasmuch as they, uncertain as to time and manner of performance, were repugnant to the grant and in contravention of the principle of public policy which forbids restriction of the right of alienation. This was a Civil Action, tried before Connor, J., at the December (special) Term, 1891, of the Superior Court of Pitt County. The parties waived trial by jury and consented for the Court to find the facts and declare the law arising thereupon. The Court found the following facts: 1. That the defendant J. T. Evans, on the 13th day of June, 1887, executed and delivered to the plaintiff his bond under seal, whereby he obliged himself to pay to the plaintiff on the 1st day of February, 1888, the sum of three hundred and twenty five dollars, with interest at 8 percent, from the said 13th day of June, 1887. 2. That on the said 13th day of June, 1887, the said J. T. Evans executed and delivered unto the said plaintiff a mortgage deed, whereby he conveyed to him, for the purpose of securing the payment of said bond, "one tract of land adjoining the lands of Frank Mills, John Carroll, Alfred Weatherington and others, and containing fifty acres, more or less; also the lot containing one acre on which my storehouse now stands, and all improvements on said lot." That said mortgage, after being admitted to probate, was duly recorded in the office of the Register of Deeds of Pitt County. 3. That the "one acre" lot referred to in said deed was intended and understood by the parties to said mortgage to include the lot purchased by said Evans from the defendant J. B. Galloway, and was the only lot owned by said Evans in the county of Pitt upon which the storehouse of said Evans stood. 4. That no part of said bond has been paid. 5. That the defendant J. B. Galloway, and his wife, on the 22d day of October, 1884, conveyed the said one acre or storehouse lot to said J. T. Evans for and in consideration of the sum of twenty five dollars. That in the deed conveying said lot is the following clause: "The said J. B. Galloway and wife Alice Galloway, retaining for themselves and their heirs and assigns the right to repurchase said land when sold, the said Jefferson Evans conveying a title for said land either by deed or mortgage to any person without first giving J. B. Galloway and wife and their heirs and assigns the privilege of repurchasing the same, renders this deed null and void, otherwise to remain in full force." That said deed is duly recorded in Book M 4, page 374, in the office of the Register of Deeds in Pitt County. The court finds the foregoing facts in respect to said deed from the admissions in the answer of the defendants. The defendants insisted that the plaintiff should be required to introduce the said deed, and that the ruling of the Court that the admissions in the answer relieved the plaintiff of the necessity of doing so. The defendant J. B. Galloway duly excepted. That the defendant J. T. Evans did not, prior to the execution of said mortgage to plaintiff, notify the defendant J. B. Galloway, or his wife, of his purpose to execute the same. The said defendant J. B. Galloway, upon learning of the execution of said mortgage, entered upon the possession of the said lot for the alleged breach of the condition in the aforesaid deed, and is now in the possession thereof, claiming the same by reason of the said alleged breach. That neither at the time of making and entry, nor at any time since, has he paid or tendered, either to the plaintiff or the said J. T. Evans, the sum of twenty five dollars or any other sum in payment for said lot. That after the purchase of the said lot from said Galloway the said Evans built a storehouse thereon at a cost of three or four hundred dollars. The defendant insisted that the description of the said "one acre" lot in the mortgage from defendant Evans to the plaintiff was fatally defective for uncertainty. The Court held that the description was capable of being rendered sufficiently definite by relevant testimony, and that the admission in the answer and the testimony in the cause was sufficient to enable the Court to find the facts herein before set forth. Defendants excepted. The defendant J. B. Galloway insisted that the plaintiff, having shown no deed from him to defendant Evans, was not entitled to recover as against him. The Court held that by the admission in the answer, title was shown to be out of defendant Galloway, unless it was revested by reason of the execution of the aforesaid mortgage, and the facts herein before set forth in respect thereto. Defendant Galloway excepted. The defendant Galloway insisted that the defendant Evans, by the execution of the mortgage to the plaintiff without giving him the notice required in said deed, forfeited his title, estate and interest in said one acre lot, and that plaintiff took his mortgage with notice of the provisions in the said deed and subject to his, Galloway's rights in respect thereto. The Court held that the provision in said deed, whereby the said Galloway retained the right to repurchase the said lot was - 1. An undue restraint upon said Evans' right of alienation, and therefore void. 2. That treating it either as a condition annexed to the estate, or as a covenant of Evans to reconvey to said Galloway, it was void for uncertainty; (a) no time being fixed within which it was to be performed; (b) no price being fixed at which the lot was to be reconveyed. 3. That treating the reservation in the deed as a right to repurchase the said lot by said Galloway when sold within a reasonable time and at the improved value of the lot, the execution of the mortgage to plaintiff was not inconsistent therewith, and that the clause declaring a forfeiture if the said Evans should convey either by deed or mortgage will not be specifically enforced by the Court, especially when said Galloway has not tendered the purchase money. Defendant Galloway excepted. The Court rendered the judgment, from which defendant appealed. J. B. Yellowley for plaintiffs No counsel contra NC Supreme Court Justice Shepherd, J. - Considered either as a conditional sale or a contract to reconvey, his Honor was entirely correct in holding as void for uncertainty the provision in the deed respecting the right of the grantor to repurchase the land when sold. No time is fixed for performance, nor is there any stipulation whatever as to the price to be paid. (see court case for judge's full findings) The judgment must be Affirmed Additional Comments: In the NC Supreme Court September Term 1892 File at: http://files.usgwarchives.net/nc/pitt/court/jbgallow2165gwl.txt This file has been created by a form at http://www.genrecords.org/ncfiles/ File size: 7.6 Kb