dissenting. I can not concur in the decision reached by my learned brethren in this case. The evidence tends to show that Mrs. Holmes owned a farm in Early county. She had leased it for a number of years to Singletary, who in turn subrented it, first to Shep Cowart, and later to his wife, Caroline. At the expiration of the lease to Singletary, Caroline Cowart, whose husband had become involved in debt, and who had formerly belonged as a slave to the parents of Mrs. Holmes, made a contract of purchase for the lot of land in controversy with Mrs. Holmes for the sum of $1,250, the latter executing to Caroline a bond for title, with the stipulation that “this bond is not transferable to 'any one.” Singletary was a merchant and did a supply business. The Cowarts were indebted to him for supplies for the farm. Caroline, before the first purchase-money note became due, and before she had paid any of the purchase-money, executed a deed to the land to Singletary, “for and in consideration of, that A. J. Singletary will comply with the conditions of the bond she holds from Mrs. E. E. Holmes, receipt of which is hereby acknowledged.” Contemporaneously with the execution of the deed, Singletary executed an instrument by the terms of which he declared that he had “leased to Caroline Cowart all of the cleared land” on the lot in controversy for a term of six years, the consideration of the lease being 1,750 pounds of middling lint-cotton payable Oct. 1st each year. It is stipulated in this lease that Singletary agrees at the “termination or end of this lease, should the said Cowart pay all rents that may be due on this lease and 'all other indebtedness that she may owe said Singletary, and in addition seven hundred and fifty dollars, *453then the said Singletary agrees to make said Cowart a deed to said lot of land. It is distinctly understood that this is a lease contract and not a sale; but, as stated, should said Cowart at the termination of this lease pay all rents, all-other indebtedness, and seven hundred dollars, the deed is to be made.” The evidence of Caroline and her husband tended to show that she did not know she was executing a deed to Singletary; that they were ignorant and could neither read nor write, and were told by Singletary that the instrument was merely a “showing” or note for what they owed Singletary. The testimony of Singletary tended to deny all this, and to show that it was understood that the instrument signed was a deed. Caroline brought cotton to Singletary each fall after the lease, which,, her evidence tended to show, was to be applied by him, as her agent, to the land notes of Mrs. Holmes. Singletary insists that he paid the money arising from the sale of the cotton to Mrs. Holmes on his own account as part of the purchase-money, and not on the contract of Caroline with Mrs. Holmes. He testified: “I would not say positively I wrote and told her I had bought the land or not. I would not say I wrote her that, but I wrote her to give her to understand that it was a good debt, and I would take it up; but I would not say that I wrote her and told her Caroline had deeded me the land. She knew I was paying them. She knew I wrote and told her to send them to the bank.” Q. “She did not know who it was for?” A. “I don’t reckon she did. I wrote 'and told her I would pay the notes. . . I just wrote Mrs. Holmes I would see the notes were paid.” The evidence tends to show that Singletary paid a portion of the notes, the first four directly to Mrs. Holmes, and others through the bank. Caroline had possession of the first four notes paid. After a number of the notes had been paid by or through Singletary, the evidence tends to show that Caroline induced E. S. G-rimsley to take up the remaining purchase-money notes, amounting to $727, which he paid to Mrs. Holmes upon Caroline’s request, and Mrs. Holmes consented to, and did, execute a warranty deed to Grimsley, upon the promise of tlie latter to give Caroline “a home for her lifetime.” After the execution of the deed from Mrs. Holmes to Grimsley, the latter executed a deed to Caroline to “a life interest” in one half of the lot of land in controversy. It is provided in this deed that in the event that the land shall be levied upon by any process whatever, or *454that Caroline or Shep Cowart shall lease or sell the land, it shall revert to the grantor.
From a careful inspection of the record in this case, I think that the court erred in entering a decree requiring G-rimsley to execute to Singletary a deed to the premises in dispute. I am aware of the rule that “If, after notice that another has made a contract for the purchase of land, a third person cuts in, buys it, and takes a conveyance, such person stands in the place of his vendor; and a court of equity, if it would decree a specific performance of the contract against the latter, will render a like decree against the former.” Bryant v. Booze, 55 Ga. 438. But the present case is different from the Bryant ease. There is no evidence in the instant case that Mrs. Holmes, the original vendor, ever knew that Caroline had sold to Singletary a title that she did not possess. The title was in Mrs. Holmes, and she was not bound, in selling it, to examine the records and see whether some one else claimed a title to her land. This duty may he upon a purchaser, but not upon one having the legal title and who desires to sell; and it is clear that Mrs. Holmes had the legal title. Nor is there in the record any evidence tending to show that Mrs. Holmes knew that Singletary was paying her the money for himself, but, on the contrary, Singletary testified, “I don’t reckon she did” know who the money was paid for. Hnder the circumstances, Mrs. Holmes could not be made to execute a deed to Singletary. She had not contracted .with, nor sold to him the land. She had no knowledge that he was paying her the notes as a purchaser from herself, or from Caroline. She had sold to another (Caroline), and the latter had requested that titles be made to Grimsley. How could Mrs. Holmes be made to perform specifically to Singletary when she had never contracted to do so, or in any other way become bound to do so? If she can not be made to perform specifically as to Singletary, I fail to see how her vendee can be so compelled. Mrs. Holmes’s administrator was not a party to this suit.
It- is argued that the assignee of the obligee in the bond stands in the shoes of the obligee; and that when part of the purchase-money is paid by the assignee, and the remainder is tendered by him to the vendor, the latter will be compelled to execute a conveyance. But the reply is that there was a restriction in the bond for title that it was not to be transferable. The assignee had .notice of the *455restriction; and there is authority that such restriction, if reasonable, is valid. Thus, “A condition may be imposed in a deed on the power of alienation in certain eases, as that the land shall not be conveyed before a certain date, or to a certain person.” 2 Devlin on Beal Estate, § 382. In the case of Grigg v. Landis, 19 N. J. Eq. 350-353, it is said: “Any person in selling his property, or making a contract for the sale, has a right to make such agreements and conditions as the purchaser will assent to, provided they- are not contrary to law, or the policy of the law. It is not allowed to make property inalienable; it is contrary to the policy of the law; but it is permitted to restrain alienation for a limited time, or for certain specified purposes, or on certain conditions. . . And there is nothing inequitable in the provision that until all arrears are paid up, and all stipulations complied with, the contract shall not be assigned, even in equity. It must be held, therefore, that the assignment made in express violation of the positive provisions of the contract is void, and the complainant claiming through such assignment is entitled to no relief in equity.” In 1 Warvelle on Vendors (2d ed.), § 452, it is said: “While the general principle that the conveyance of an estate in fee-simple imports absolute ownership in the grantee, and that any restriction or condition imposed inconsistent with or repugnant to the estate so granted is void, seems to have been adopted as a universal rule of law, it has nevertheless been held in England from very early times that partial restraints may properly be annexed to a grant of the fee, and that the grantee may not disregard such partial restraint under penalty of forfeiture of his estate. This doctrine has also been recognized in some of the American States, and in a number of States it has been held that a condition not to alien to a particular person or persons is valid;” citing, Cowell v. Col. Springs Co., 100 U. S. 55 (25 L. ed. 547); Gray v. Blanchard, 8 Pick. (Mass.) 284; Jackson v. Schutz, 18 Johns. (N. Y.) 174 (9 Am. D. 195). Likewise, “Bestraints with respect to time have in several instances been held good and the conditions sustained, provided the restriction is limited to a reasonable period.” Id. § 453, citing, Stewart v. Brady, 3 Bush (Ky.), 623; Dougal v. Fryer, 3 Mo. 40 (22 Am. D. 458); Langdon v. Ingram, 28 Ind. 360. In the ease of Lockerby v. Amon, 64 Wash. 24 (116 Pac. 463, 35 L. R. A. (N. S.) 1064, 26 Ann. Cas. (1913A) 228), the *456defendants entered into a written contract whereby they agreed to sell S. certain real estate. A cash payment was made, and the remainder was to be paid on or before two years after the date of the contract, with interest at eight per cent, per annum. It was provided in the contract that the "parties of the first part will sell to the said party of the second part, his heirs and assigns.” It was also provided that if the purchase-money was paid according to the intent and tenor of the contract, then the parties of the first part were to make a warranty deed to the premises to the party of the second part. It was further provided that "no assignment of this agreement shall be valid without the consent and signature of W. B. Amon and Sarah M. Amon, his wife, the parties of the first part.” The contract was afterwards assigned by the obligee to J., who tendered the full amount due under the contract and demanded' a deed. On being refused, he brought suit to compel specific performance. A judgment of dismissal was entered on the ground that the contract was not assignable. The Supreme Court of that State affirmed the judgment, holding: "A provision in a conditional-sale contract of real estate that it shall not be assigned without the consent of the vendor is valid, and an assignee without such consent secures no enforceable rights under the contract.” In answer to the argument in that case that the restriction against alienation was designed only to insure payment of the purchase-money, and, that being tendered, there could be no reason for withholding the deed, Chadwick, J., well said: "These arguments are not new, and find some support in the ’authorities; but they have been rejected by a majority of the courts. The privilege of selecting a grantee is an incident of ownership-, and we can not presume, as did the Supreme Court of Minnesota, that ‘at most this stipulation against an assignment is merely collateral to the main purpose of the contract, designed as a means of securing and enforcing payment of what was undertaken by the vendee, to wit, the prompt payment of the purchase-money. When the vendor has received all his purchase-money, he has received all that he is entitled to, and all that the provision against an assignment was intended to secure Johnson v. Eklund, 72 Minn. 195, 75 N. W. 14. While this reasoning is entitled to consideration, we can not accept it as the end of the law. A vendor may have confidence that his vendee will not use the property to his disadvantage. It is his privilege to *457decline to deal with strangers. Or he may, by limiting the right of assignment, save any question as to the interest of intervening third parties, a result not altogether unlikely under our community property system. Or he may be unwilling to assume to pass upon the legal sufficiency of an assignment.” And in the case of City of Omaha v. Standard Oil Co., 55 Neb. 337 (75 N W. 859),.it was said: “It [the assignment of the bond] compelled the eity to deal with strangers, and to determine, at its peril, which of the contracting claimants was entitled to the fund. This may have been one of the very contingencies contemplated by the city, and against which it sought to provide by making the contract non-assignable.” And see note to Mueller v. Northwestern University, 88 Am. St. R. 201 (195 Ill. 236, 63 N. W. 110); 4 Cyc. 20. In Langdon v. Ingram, 28 Ind. 360, it was held: “A condition that a grantee or devisee shall not alienate for a particular time, or to a particular person, is good.”
But it may be insisted that such a restriction as that contained in the bond in the present- case, against alienation of-the bond for title, is against public policy and void, unless by the terms of the restriction there is a limitation over of the property, or a forfeiture of the rights of the obligee in case of alienation; and there is some authority to that effect. But if a restriction' against alienation, without a clause of forfeiture, is void as being against public policy, I fail to see why it is not equally so when there is a provision for forfeiture in case of alienation; for the foundation of this rule of public policy is that the public welfare demands that there be freedom to dispose of what one owns, and there is as much restraint on disposition where a forfeiture is imposed as when there is simply an agreement not to transfer.
Nor is the restriction void in this case because it amounts to a perpetuity. Under my construction of the bond for title, it can not be transferred until the time when the last purchase-money note is paid, and I think that this is a reasonable time within which, to limit alienation. And, as held in many jurisdictions, a contract in restraint of alienation is not void if not unreasonable. An option in a lease to be exercised within fifteen years has been held not void as against perpetuities. 1 Page on Contracts, § 382. Any other rule than this would deprive two or more persons of the right to contract; and this itself would be contrary to public *458policy. Two or more persons may contract without let or hindrance, provided the contract does not contravene some rule of law or of public policy. It is the right of every one to contract with whomsoever he pleases. And to hold that one can not so contract, within the limitations above specified, would be to deprive him of a constitutional right. One has the right to select the person with whom he deals, and to restrict the time of payment named in a contract to a reasonable time and prohibit alienation within such time; and that is only what this contract does. What was the effect of the restriction in the bond ? If a reasonable condition imposed in a deed is valid, a similar one in a bond for- title would likewise be valid. The effect of the condition in this bond was that there could be no transfer of the bond, or a conveyance of the land in controversy by the obligee in the bond until the last purchase-money note was paid; and this, I think, was a reasonable condition. The evident purpose of the vendor was to secure a home to her old servant, Caroline, and she was not to alienate or transfer the bond until it matured and the vendor could execute to her a deed to the land. The restriction as to alienation was limited, at all events, to a period of about six years, the maturity of the last note, as the bond stipulated that “time is of the essence of this contract; and should party of the second part fail to pay said notes, as they become due, then this bond becomes null and void, and-whatever money 'is paid shall be treated as rent at the rate of $150 per annum.” It follows from what'has been said, that Caroline could not alienate or transfer the bond before the last note was due, and whosoever took a deed from Caroline before that date, with notice of the condition in the bond, was bound by .that condition; and having no power to transfer the bond, she certainly could have no power to convey the land before the time stipulated in the bond. Therefore, when Singletary took the deed with notice of the condition in the bond, he acquired no right contrary to the condition.
This case is very different from the Bryant case, supra, where a third person had “cut in” to deprive a purchaser of his trade. In the view I take of the case, at the time Crimsley purchased the land from Mrs. Holmes, Singletary had not effected a legal contract of purchase of the land from Caroline, on account of the restriction in the bond providing that she could' not alienate it, or with Mrs. *459Holmes; and henee Grimsley had the legal right to purchase from any one having the legal right to sell. Mrs. Holmes never having parted with the legal title to Caroline, nor having sold to Singletary so far as the evidence discloses, and Caroline having no right to sell to Singletary, Grimsley had the right to purchase from Mrs. Holmes, with the consent of Caroline that her contract with the obligor be canceled; and having done so, Grimsley secured a good title relatively to Singletary and Caroline. While it is true Grimsley had notice of the deed from Cowart to Singletary, he also had notice of the restriction in the bond. It may be that Caroline is liable to Singletary on her warranty, if she executed the deed to him, as the auditor finds that she did, and that she is estopped from setting up that she had no title to the land; but I think there is no privity as between Grimsley and Singletary; and consequently the court could not, for the reasons given above, compel Grimsley to execute a deed to Singletary, or enter a decree canceling the deed from Mrs. Holmes to Grimsley, or enter a judgment for any amotínt against Grimsley.