Re: Bonnell V. McLaughlin (1916) 173 Cal 213

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On 10/14/07, Rick wrote:
> Hi I need to find the court case Bonnell v. Mclaughlin
> (1916) 173 Cal. 213 (CA Supreme Court case) it is old so i
> am having a hard time finding it
> thank you for your help
> Rick

Hi Rick:

I don't know if this site will let me post a file this large
but I'll try. If not I'll send it to your reply email
address. Do you need the head notes to this case also?
****

COUNSEL: Peter A. Breen, and Percy E. Towne, for Appellants.

Jean & Moore, for Respondents.

JUDGES: Henshaw, J. Lorigan, J., and Melvin, J., concurred.

OPINION BY: HENSHAW

OPINION

[*214] [**590] 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 [***2] 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 [*215] 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 [***3] a
restriction repugnant to the grant itself, and of the
soundness of its conclusion in this regard no doubt can be
entertained. HN1In 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; Murray v. Green, 64 Cal. 363, [28 Pac. 118].) In
Maynard v. Polhemus, 74 Cal. 141, [15 Pac. 451], the deed
contained the proviso that if the grantee "should ever sell
any of the vested property it should be sold to the said
DePeyster." Says this court, HN2"construed as a covenant, it
was merely personal, and not binding upon the heirs or
assigns of Cooper." As a condition "it is unreasonable, and
contrary to the policy of the law, because in restraint of
alienation." In Prey v. Stanley, 110 Cal. 423, [42 Pac. 908],
the restriction was that the grantee should sell or convey no
part of the land without the consent of W. H. Stanley. This
restriction was not contained in the deed itself [***4] but
was in form a separate covenant, this court saying that
HN3the rule that conditions in restraint of alienation when
repugnant to an interest created are void ( Civ. Code, sec.
711) "does not depend upon the mere form in which the
restraint is imposed. It avoids, as well, covenants of the
grantee against alienation as conditions of like nature
imposed by the grantor; such covenants, if not within the
letter of section 711 of the Civil Code, are yet obnoxious to
the policy of which that section is a partial expression.
(Greenhood on Public Policy, 606, note 2 et seq.; Hunt v.
Wright, 47 N. H. 400, [93 Am. Dec. 451], and cases cited.)
The parties to the contract of February 23, 1892, seem to
have made the mistake of leaving the [*216] absolute title
in Mrs. Stanley, and at the same time attempting to destroy
an inseparable incident of such title." As is pointed out in
24 American and English Encyclopedia of Law, second edition,
page 868 et seq., and note to In re Walkerly, 49 Am. St. Rep.
97, this rule is of well-nigh universal acceptance. In the
latter it is said: "Hence, HN4if a deed or devise is attended
with an express condition that the beneficiaries shall not
[***5] sell or convey the property, no perpetuity is
created, because the condition itself is void, and the fee
and absolute power of disposition vest in him." Further
reference may be made to Ernst v. Shinkle, 95 Ky. 608, [26 S.
W. 813], Pritchard v. Bailey, 113 N. C. 521, [18 S. E. 668],
Camp v. Cleary, 76 Va. 140; Hardy v. Galloway, 111 N. C. 519,
[32 Am. St. Rep. 828, 15 S. E. 890], and Wakefield v. Van
Tassell, 202 Ill. 41, [95 Am. St. Rep. 207, 65 L. R. A. 511,
66 N. E. 830]. Even in Kentucky, where the court of last
resort has for a long time adopted a modified rule to the
effect that the restraint will be upheld if it appear to the
chancellor to be not unreasonable, it is recognized [**591]
that the views of that court are against the great weight of
authority, and indeed this is expressly declared in Lawson v.
Lightfoot, (Ky.) 84 S. W. 739, in the following language: "It
must be conceded that the great weight of authority outside
of Kentucky is to the effect, that HN5where the fee simple
title to real estate passes under a deed or will, any
restraint attempted to be imposed by the instrument upon its
alienation by the grantee [***6] or devisee is to be treated
as void; and such is clearly the rule announced by Mr. Gray
in his excellent work on 'Restraints of Alienation.' But the
contrary view has been adopted by this court in repeated
decisions."

No doubt can be entertained but that HN6this limitation or
restriction upon the power of alienation, which is so
important a right of ownership where a fee simple is
conveyed, does violence to the interest conveyed and is
therefore void.

The judgment appealed from is therefore affirmed.