In the examination of this case on motion for rehearing, the following restriction, embodied in the deed introduced in evidence, was adverted to by the court in its opinion: "Provided, further, that said land shall not be sold, transferred or conveyed to any person or corporation whatever until each and all of the said heirs of the said Mary Emeline Pearce are of lawful age under the present law of the state of Texas, and in the event said land or any part thereof, or interest therein, is so sold, transferred or conveyed, the same or such part thereof, or interest therein, so conveyed, sold or transferred, shall revert to me, the said T. S. Vaughn, my heirs, executors and administrators." In discussing that clause, as an aid really for the determination of the question as to the real character of the estate that was intended to be conveyed by this deed, this language is used in the opinion: "In the case of Berry et al. v. Spivey [44 Tex. Civ. App. 18] 97 S.W. 511, the court held that a provision in a grant of land, which restricted the power of the grantee on her part or on the part of her husband, jointly and severally, to alienate such land until the youngest child of her and her said husband should arrive at the age of 21 years or should marry, if a daughter, was not an unlawful restraint upon alienation, since the restriction was necessarily limited to the life of the grantee. And in that case the deed was held not within the rule in Shelley's Case. The restriction on alienation in the case above referred to is very similar to the one here under consideration, and we are cited to no authority that supports appellee's contention that such restriction is unlawful," We are inclined to think that the able judge who rendered that opinion, using this language in commenting upon the validity of the clause quoted from the deed, did so as an explanatory circumstance of the real intention of the grantor as to the character of the estate intended to be conveyed, which intention, discovered by the recitations in the deed, was finally the ultimate point in this case, for the reason that immediately preceding the language used by him in making the comment, and immediately succeeding the stipulation in the deed quoted, he says: "As established by many decisions of our courts, effect should be given to this intention, if the same can be lawfully done" — and further on in the opinion passes upon the validity of a married woman's lease of her separate property, not because of the restraint upon alienation of any interest in the land, but because the lease was of the separate property of the wife for more than one year, and not acknowledged by her in accordance with the statute, which was condemned by the Supreme Court of this state in Dority v. Dority, 96 Tex. 215, 71 S.W. 951, 60 L.R.A. 941.
If the language of the opinion could be construed to the extent of holding the stipulation in restraint of alienation as a valid one, we think it was unnecessary to the decision of the case, and this additional opinion is merely for the purpose of restricting the opinion of this court, in its decision of this case, to the character of the estate and interest of Mrs. Pearce intended to be conveyed to her, as against the appellant, T. S. Vaughn, who was the ostensible subassignee of a purported lease. The matter and question of the validity or invalidity of the recitation in restraint of alienation, in the deed from Vaughn to his daughter, is not decided.
We believe that, upon the real merits of the controversy between the parties, the opinion of the court properly disposed of the case, and the motion for rehearing, and the companion motion in this case to certify the cause to the Supreme Court, are in all things overruled.