Opinion
20817, 20822.
ARGUED MARCH 15, 1960.
DECIDED APRIL 7, 1960.
Equitable petition. Fulton Superior Court. Before Judge Moore. December 2, 1959.
William G. Grant, Robert W. Spears, John W. Weeks, for plaintiff in error.
Robert F. Lyle, R. T. Bartholomew, N. Forrest Montet, contra.
Whether embraced in the deed or a separate verbal agreement never to convey the property to anyone not bearing the Jackson name, such condition is illegal and void, inhibiting alienation of the property; and the relief sought in the petition being based thereon, no cause of action is alleged. The court erred in overruling the general demurrer to the petition.
ARGUED MARCH 15, 1960 — DECIDED APRIL 7, 1960.
This action is alleged to be an equitable one to recover the proceeds from the sale of certain lands deeded by the petitioner to the defendant, his nephew, in 1948, for the sum of $2,000 and the promise to build his residence thereon and "never convey said realty, or any part thereof, to any person not a member of said Jackson family bearing the Jackson name," which oral promises were allegedly made with the intent to deceive and defraud, since he had no intention of complying therewith. The petition further alleges that in 1954 the defendant conveyed a part of the property for the sum of $20,000, and in 1958 conveyed the remaining part of the property for the sum of $25,000, and thus it is impossible for the defendant to carry out his promises; that the petitioner has tendered the $2,000 received to the defendant, has no adequate remedy at law, and by reason of the bad faith of the defendant he is entitled to $2,500 attorney's fees, $10,000 punitive damages; and he prays for judgment in these amounts as well as the amount received for the property; for an accounting, the appointment of an auditor, and that the defendant be declared a trustee ex maleficio of the proceeds and enjoined from disposing of, conveying, or transferring the proceeds received from the sale. General and special demurrers were filed thereto, and, after a hearing, were taken under advisement by the court. Upon the call of the case and before a judgment was rendered on the demurrers, counsel for the defendant made an oral motion to dismiss. The court overruled the demurrers and the motion to dismiss, and the exceptions in the main bill are to this judgment. Prior to this judgment and the argument on the oral motion to dismiss, counsel for the petitioner filed a written motion to disallow the oral motion to dismiss, which was denied, and the assignment of error in the cross-bill of exceptions is to this judgment.
The allegations of the petition, tracing title to the land in question from 1883 to the petitioner, and alleging that he owned the same from 1933 and "did convey said realty . . . to said defendant on or about May 31, 1948," when considered on demurrer must be construed to mean that the fee-simple title was conveyed to the defendant. The petition then seeks to impress upon the land conveyed or the proceeds from the sale thereof a trust, upon the allegation that it was to be kept in the Jackson name and the grantee was to build his residence thereon. The alleged attempt to restrict the alienation is contrary to law, is violative of public policy, and is utterly void. Wills v. Pierce, 208 Ga. 417 ( 67 S.E.2d 239). Logically, therefore, this unlawful agreement, irrespective of whether it was written into the deed, or was oral as alleged, is unenforceable, creates no obligation upon the grantee, and may be violated with absolute impunity. The defendant, having received an absolute deed, had the unrestricted right to convey same to whomsoever he chose. Code § 85-903; Taylor v. Sutton, 15 Ga. 103 (60 Am. Dec. 682); Freeman v. Phillips, 113 Ga. 589 ( 38 S.E. 943); Crumpler v. Barfield Wilson Co., 114 Ga. 570 ( 40 S.E. 808); Stamey v. McGinnis, 145 Ga. 226 ( 88 S.E. 935); Leach v. Stephens, 159 Ga. 193 ( 125 S.E. 192); Wills v. Pierce, 208 Ga. 417, supra. While the grantor makes no attempt to allege in what manner a breach of the promise by the grantee to build his residence thereon did or can possibly injure him, we would point out that by its very nature this promise could not have benefited the grantor, and consequently its breach can not possibly injure him. Since, as ruled above, the defendant had the right to alienate the title immediately, he could not after such alienation erect a residence thereon. Nor can it logically be contended that the grantor would have benefited because of the improved appearance from such building, since there are no specifications, and hence a straw but would satisfy it but would hardly beautify the land. It follows that the defendant is shown to have obtained title to the fee, and the alleged conditions being illegal and unenforceable, the petition alleges no cause of action, and it was error to overrule the demurrer thereto.
The above ruling renders the other rulings of the lower court on the oral motion to dismiss and the motion to disallow it nugatory, hence no ruling on the cross-bill of exceptions will be necessary.
Judgment reversed on the main bill; cross-bill of exceptions dismissed. All the Justices concur.