Northwest Real Estate Co. v. Serio

The restraint upon alienation included in the deed to Einbrod and wife seems clearly enough to be one intended merely to give the developer of a suburban area of land power to control the character of the development for a time long enough to secure a return of his capital outlay, and to give early purchasers of lots and buildings some security in their own outlay. In those objects there is nothing against the public interest. We can hardly hold that the modern method of developing city or suburban areas as single large enterprises is detrimental to the public. On the contrary, it seems to be often the only method by which such areas can be conveniently and economically opened, so that houses may be provided upon convenient terms, with all the neighborhood necessities of streets, sewers, and the like ready at the outset. The venture of capital for this purpose appears to be distinctly a public benefit rather than a detriment, one which it is to the public advantage to encourage and promote rather than to hinder. But we know that there are real, substantial dangers to be feared in such ventures, and that under the modern conditions of rapid city growth and rapid shifts of city populations, one of the most important risks is probably that which comes from the chance of invasion into the new neighborhood of an element of the population which the people to whom the developer must look for the return of his outlay will regard as out of harmony with them. However fanciful may be the aversions which give rise to it, and however deplorable they may be, to the developer they and their consequences must be as real as destructive physical forces. And if it is to the public interest that this method of development be encouraged rather than hindered, then practically there must be a public gain in removal or diminution of this deterring danger. And the temporary restraint on alienation which the parties here involved have adopted to that end must, I think, be viewed as in point of fact reasonable, and from the standpoint of the public interest actually desirable. And if this is true, then I venture to think there is no substantial reason why the law should interfere *Page 237 with it, denying the parties the right to agree as they have agreed, or denying their agreement full validity.

The general prohibition of restraints on alienation by vendees has been based on three grounds. One has been that of a supposed contradiction between a grant of complete ownership and any qualification of it. That objection, as has been pointed out (3Tiffany, Real Prop., sec. 592), is a product of judicial fiat, and one of logicians rather than of practical men. A second, and a more substantial ground, is that the vendor in a conveyance embodying the restriction, having parted with his ownership, is now without interest in the restriction, and there are no rights protected by it. 3 Tiffany, Real Prop., sec. 392. But that may or may not be true in a particular case, and however true it may be in a transaction concerning simply one piece of property, such as the law has had to consider almost always in the past, it is very commonly not true in modern conveyances of real property. And it is not true in the present instance, The third, and, according to the weight of authority, the only considerable ground for the law's interference, is that of public policy, or the public disadvantage in having property withdrawn from commerce and its improvement and development checked. 3 Tiffany,Real Prop., sec. 392; Gray, Restraints on Alienation, sec. 21. But those detrimental consequences do not exist here. And if they do not exist, why should the law be taking a stand to resist them, even when by doing so it denies to parties a right to make an agreement which may in fact redound to the public advantage? Public policy, or a policy of the courts looking to the public interest, is a stand with relation to conditions as they exist, and arises from those conditions, or it is without purpose or justification.

Perhaps it is somewhat unusual, in the administration of the law with respect to restraints on alienation of real estate, to deal with the general prohibition as only an effort to accomplish certain purposes, and to test a particular restriction by these purposes, but it seems nevertheless right to do so. If I am not mistaken, this court has so dealt with a similar restraint in a bequest of personal property; and the rule *Page 238 we are considering is one and the same when applied to conveyances of complete ownership in either personal or real property. Brantly, Personal Property, sec. 122. In Williams v.Ash, 1 Howard, 1, in an opinion by Chief Justice Taney, the Supreme Court of the United States upheld a restriction upon a legatee of slaves: "that he should not carry them out of the State of Maryland, or sell them to anyone; in either of which events, I will and desire the said negroes shall be free for life." In the opinion this was distinguished as a conditional limitation of freedom rather than a restraint upon alienation, but it has usually been regarded as no more nor less than a restraint. Gray, Restraints on Alienation, sec. 28; Potter v.Couch, 141 U.S. 296, 316, 317. In Steuart v. Williams,3 Md. 425, 429, a similar question was presented to this court andWilliam v. Ash was taken as having established the validity of such a clause. And I believe that if a plain restriction on a legatee's sale of slaves could come before the court today, we should agree that the lack of any public interest opposed to it, or rather the desirability of it, would save it from the bar of the general prohibition. See Adams v. Anderson, 4 H. J. 558;Price v. Read, 2 H. G. 291.

We have seen the absolute common law prohibition against restraints upon the exercise of a trade adapted to conditions of modern life by measuring particular restraints by the present public interest. 8 Holdsworth, History of English Law, 56-62; 31 Harvard Law Review, 193; Guerand v. Dandelet, 32 Md. 561, 566. The old prohibition of restraints on alienation has itself been adapted to later conditions in part. 3 Holdsworth, 85-86. Many modern courts have held valid restraints on alienation of real property limited as to time, or as to specified classes of vendees. Roberts v. Boston, 5 Cush. 198; West Chester Ry. Co.v. Miles, 55 Pa. St 209; Plessy v. Ferguson, 163 U.S. 537. Authorities collected in 38 A.L.R. 1185 note. In Maryland restrictions upon a vendee's use of property have been upheld, repugnant as these might be, logically, to the grant of an otherwise absolute title. Peabody Heights Co. v. Willson,82 Md. 186. It is true that the allowance of such restrictions is distinguished on the ground that they are embodied only in incidental agreements and are *Page 239 not qualifications on the estates granted, but assuming that such a distinction is a substantial one, it remains true that the freedom and power of the vendees in dealing with their property are qualified by them, and they have not been found to conflict with considerations of public policy, and so have not been interfered with.

The view I venture to urge, then, is that the general prohibition of restraints on alienation should be considered as having some relation to the facts to be dealt with; not that the law should be changed, but that there should be a recognition of change in the conditions with which the law has had to deal, and a discriminating pursuit among modern conditions of the one object always sought by the law, the protection of the public interest. And this is not to advocate the abandonment of a general rule, leaving the policy of the courts to be adjusted to each conveyance independently; there may be need of some fixed general standard for what has been termed predictability in the law, and that would necessitate ignoring some possible differences in cases. Tide Water Canal Co. v. Archer, 9 G. J. 479, 528. But it has seemed to me that, whatever that general standard might be, the restraint adopted in the conveyance now being considered, limited as it is in time, and having a purpose and an effect in which no public disadvantage can in fact be found, need not and should not be included within the general prohibition to forestall a public disadvantage. *Page 240