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

More | Report Post

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

Oh -- Good; it posted!
Here are the head notes to the case:
***************
173 Cal. 213, *; 159 P. 590, **;
1916 Cal. LEXIS 391, ***

ISABELLE M. BONNELL et al., Appellants, v. THOMAS McLAUGHLIN
et al., Respondents

S. F. No. 6902

Supreme Court of California, Department Two

173 Cal. 213; 159 P. 590; 1916 Cal. LEXIS 391

July 27, 1916

SUBSEQUENT HISTORY: [***1] Hearing In Bank Denied.

PRIOR HISTORY: APPEAL from a judgment of the Superior Court
of San Benito County. M. T. Dooling, Judge.

DISPOSITION: The judgment appealed from is therefore
affirmed.

CASE SUMMARYPROCEDURAL POSTURE: Plaintiff devisees challenged
a judgment from the Superior Court of San Benito County
(California), which sustained a general demurrer to a
complaint in an action against defendants, grantees and
others, to recover property, title to which had vested under
a deed by the devisees' testate.

OVERVIEW: The devisees charged a forfeiture of the title for
a breach of a condition subsequent contained in a deed. The
grant of the land was made upon the express condition and
limitation that the grantees could not alienate the whole or
any portion of the premises during their natural lives. The
trial court sustained the general demurrer under the
conviction that the condition subsequent contained a
restriction repugnant to the grant itself. The court held
that: (1) under California law, because the granting clause
in the deed purported to convey title in fee simple and was
followed by the clause prohibiting the grantees from
conveying without the consent of the grantor, the latter
clause was repugnant to the interest created by the former;
(2) furthermore, being in restraint of alienation it was void
under Cal. Civ. Code § 711; and (3) whether the fee simple
title to the real estate passed under the deed or the will,
any restraint attempted to be imposed by the instrument upon
its alienation by the grantees or devisees was to have been
treated as void.

OUTCOME: The court affirmed the trial court's judgment
sustaining the general demurrer to the complaint in the
devisees' action against defendants to recover property,
title to which had vested by the devisees' testate under the
deed.

CORE TERMS: deed, alienation, void, convey, grantee,
repugnant, fee simple, covenant, grantor, heirs, express
condition, assigns forever, conveyed, condition subsequent,
granting clause, general demurrer, following language, weight
of authority, entertained, conveying, purports, devisee,
vested, presents grant, certain lot, testamentary
disposition, appurtenances, hypothecate, reversion, remainder

LexisNexis® Headnotes Hide

Civil Procedure > Pleading & Practice > Defenses, Demurrers,
& Objections > Demurrers
Real Property Law > Deeds > Enforceability
Real Property Law > Estates > Present Estates > Fee Simple
Estates
HN1 In California, where a granting clause in a deed purports
to convey title in fee simple and is followed by a clause
prohibiting a grantee from conveying without the consent of a
grantor, the latter clause is repugnant to the interest
created by the former. And being in restraint of alienation
it is void. Cal. Civ. Code § 711. More Like This Headnote |
Shepardize: Restrict By Headnote

Contracts Law > Types of Contracts > Covenants
Real Property Law > Deeds > Enforceability
Real Property Law > Estates > Future Interests > Invalid
Restraints & Rule Against Perpetuities
HN2 A granting clause in a deed being in restraint of
alienation, construed as a covenant, is merely personal, and
not binding upon the heirs or assigns of a grantor. As a
condition it is unreasonable, and contrary to the policy of
the law, because in restraint of alienation. More Like This
Headnote

Contracts Law > Types of Contracts > Covenants
Real Property Law > Deeds > Enforceability
Real Property Law > Estates > Future Interests > Invalid
Restraints & Rule Against Perpetuities
HN3 The rule that conditions in restraint of alienation when
repugnant to an interest created are void, Cal. Civ. Code §
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 § 711, are yet obnoxious to the policy of which §
711is a partial expression. More Like This Headnote |
Shepardize: Restrict By Headnote

Estate, Gift & Trust Law > Estates Created by Trusts & Wills
> Estates in Fee
Estate, Gift & Trust Law > Estates Created by Trusts & Wills
> Invalid Restraints & Rule Against Perpetuities
Real Property Law > Estates > Present Estates > Fee Simple
Estates
HN4 If a deed or devise is attended with an express condition
that the beneficiaries shall not 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. More Like This Headnote

Estate, Gift & Trust Law > Estates Created by Trusts & Wills
> Estates in Fee
Estate, Gift & Trust Law > Estates Created by Trusts & Wills
> Invalid Restraints & Rule Against Perpetuities
Real Property Law > Estates > Present Estates > Fee Simple
Estates
HN5 Where a 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 or devisee is
to be treated as void. More Like This Headnote | Shepardize:
Restrict By Headnote

Estate, Gift & Trust Law > Estates Created by Trusts & Wills
> Invalid Restraints & Rule Against Perpetuities
Real Property Law > Estates > Future Interests > Invalid
Restraints & Rule Against Perpetuities
Real Property Law > Estates > Present Estates > Fee Simple
Estates
HN6 A 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. More Like This Headnote | Shepardize:
Restrict By Headnote

Headnotes / Syllabus Hide

HEADNOTES

CALIFORNIA OFFICIAL REPORTS HEADNOTES

Deed--Void Conditions--Restraint of Alienation.--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.

Id.--Construction of Deed--Void Condition.--Where a deed for
a money consideration expressed as being ten dollars,
provided that the grantor "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," etc., a provision therein that "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," etc., is void in
containing a restriction which is repugnant to the grant
itself.