dissenting:
I respectfully dissent from the Court’s opinion in this, case.
The point of departure in my views from those expressed in the Court’s opinion rests on the proposition that the agreement and deed made by Switzer and wife, McCullough and wife to Meadows, dated the 27th day of December, 1919, was a contract of sale and purchase, with a proviso that at the end of twenty-eight years, Meadows was to pay one dollar and acquire the legal title. Clearly, the payments of $100.00 each month were payments of the purchase price by way of monthly installments.
The rule against perpetuities has been subjected to many subtleties and refinements. I think it is necessary to set forth the rule with some precision as defined by this Court: * * * “ ‘every executory limitation, in order to be valid, shall be so limited that it must necessarily vest, if at all, within a life or lives in being, ten months and twenty-one years thereafter, the period of gestation being allowed *154only in those cases in which it is a factor.’ ” Point 5 of the syllabus, Brookover v. Grimm, 118 W. Va. 227, 190 S. E. 697, 699.
The Court, in its opinion, treats the instrument executed by Switzer and his co-owners to Meadows as a lease coupled with an option to acquire the fee simple title. The cases of Starcher Bros. v. Jeff Duty, 61 W. Va. 373, 56 S. E. 524; Woodall v. Bruen, 76.W. Va. 193, 85 S. E. 170; West Virginia-Pittsburgh Coal Co. v. Strong, 129 W. Va. 832, 42 S. E. 2d 46, are cited as the authorities for the conclusion of the Court.
The case of Starcher Bros. v. Jeff Duty, supra, involved an option given for a consideration to purchase a certain tract of land owned by Duty at the price of $6.00 per acre, valid for one year. The contract contained a proviso that the Starcher Brothers could, by the payment of $10.00, extend the option for a period of one year, from April 5, 1903, and with the further proviso that Starcher Brothers could extend the option from year to year, upon the payment of $10.00 annually. It was agreed that the terms of the agreement should bind the heirs, assigns, executors and administrators of Starcher Brothers and Duty.
In the case of Woodall v. Bruen, supra, the writings there considered were two deeds from and by Bruen to Bur-dette, conveying 66.12 acres; the other by Bruen, conveying 210.36 acres to Woodall. The heirs of Bruen granted the options retained in those deeds to the United Fuel Gas Company. The material part of the deed to Burdette, executed by Bruen, contained language purportedly giving to Bruen, his heirs or assigns, the right at any time after date of the deed to purchase from Burdette, his heirs or assigns, for the sum of $66.12, * * * “ ‘the right to dig, mine, remove and ship, on and from the premises, all the Limestone, Coal, Iron, or other minerals which may be in and upon said Lot. No. 28, [the 66.12 acre tract] together with such rights of way, through, over, and upon said Lot No. 28, as may be necessary to the convenient digging, mining, removing and shipping of said Limestone, Coal, *155Iron and other minerals, reserving only so much thereof as may be used for domestic purposes.’ ” The deed to Woodall was of a similar import, but contained additional language with respect to the re-purchase, as follows: “ ‘The covenant respecting a reconveyance of these premises as before mentioned is to be null and void after ninety-nine years.’ ”
In the case of Coal Company v. Strong, supra, there had been severance of underlying coal from the surface, by deed bearing date May 31, 1904, which had been executed by the former owner of the land to a remote grantor of the plaintiff coal company. That deed contained the following provision: “ ‘Together with the right to enter upon and under said land with employees, animals and machinery at convenient point and points, and to mine, dig, excavate and remove all said coal, and to remove and convey from, upon, under and through, said land all said coal and the coal from other land and lands and to make and maintain on said land all necessary and convenient structures, roads, ways, and tramways, railroads, switches, excavations, air-shafts, drains and openings, for such mining, removal and conveying of all coal aforesaid, with the exclusive use of all such rights of way and privileges aforesaid, including right to deposit mine refuse on said land and waiving all claims for injury or damage done by such mining and removal of coal aforesaid and use of such privileges.’ ”
“ ‘All of the surface of the said land occupied or used by the said parties of the second part, or their assigns, above the level of the Pittsburg — No. 8 vein of coal, for their operations herein shall be paid for before the same shall be so used, or occupied, at the rate of One Hundred Dollars per acre, and said party of the first part, his heirs or assigns shall execute and deliver a deed therefor, in fee simple, free from liens and incumbrances, when said surface shall' be taken and paid for.’ ”
A casual examination of the opinions in the cases of Starcher Bros. v. Jeff Duty, supra; Woodall v. Bruen, supra, *156and Coal Co. v. Strong, supra, readily discloses that Starch-er Brothers, the grantees of Bruen and the Coal Company were strangers to the titles of the lands involved in those three cases.
In the instant case, I think Meadows and his grantees took a present equitable estate in the four lots covered by the agreement, and were not strangers to the title as were the parties in the Starcher Brothers, Woodall and Pittsburgh Coal Company cases. No title, equitable or legal, had vested in Starcher Brothers, Bruen, or the West Virginia-Pittsburgh Coal Company. I am therefore of the opinion that those three cases are wholly inapplicable and useless as precedents supporting the conclusion in the instant case.
“An agreement for sale is not void because it does not limit the time within which the agreement is to be carried out; the vendee has an immediate equitable interest.” Note 1, The Rule Against Perpetuities, Gray, Third Edition, page 260; In Re Doyle’s Estate, (1907) 1 Ir. 204, also supports this proposition. See also the case of Bennett v. Bennett, 92 W. Va. 391, 115 S. E. 436, wherein it was held that an estate in the proceeds of the sale of the land vested at the time the legal title was sold and purchased by the defendant.
It may be urged that an equitable estate is not present here. The case of Maudru v. Humphreys, 83 W. Va. 307, 98 S. E. 259, is authority for the proposition that an equitable estate passes by virtue of a valid enforceable contract for the sale of land to the purchaser before such purchaser acquires legal title. In the Maudru case, it was determined that the purchaser of improved property sustained the loss where the improvement on the land was destroyed by fire, without insurance, prior to the passing of the legal title.
I think the case of Bennett v. Bennett, supra, embodies the principle applicable and controlling to this case. The first point of the syllabus reads as follows: “A proposition is made in writing to the husband proposing the purchase of his wife’s separate real estate at a trustee’s sale, then *157about to be made, immediately following personal negotiations with the wife leading to the proposition in writing, wherein proponent agrees to buy the land at the trustee’s sale, and rent the same to the husband, and when the land should be resold by him to divide equally the profits with the husband; which proposition is accepted by' husband and wife, and in pursuance thereof the land is bought in by the proponent at the trustee’s sale and the deed made to him. An express trust is thereby created in favor of the wife for one half of the net profits derived from a subsequent sale of the land.” The seventh point of the syllabus, in the Bennett case, reads as follows: “The contract set out in the first point of the syllabus is not void and unenforceable as violating the rule against perpetuities.”
Under the contract between the parties in Bennett v. Bennett, supra, this Court held that, “Although no time for resale was agreed upon, the law would not permit defendant to prevent a fruition of the contract by indefinite and eternal postponement.” And, likewise incorporated in the opinion is the following quotation from 21 R. C. L. page 290, sec. 12: “ ‘The rule against perpetuities has reference to the time within which the title vests, and has nothing to do with the postponement of the enjoyment.’ ”
In Crowell v. Brim, (Ga.) 12 S. E. 2d 585, the Court had before it an agreement very similar to the one here considered. It was held that the contract was a contract of purchase and not a lease. In Gibson v. Alford (Ga.) 132 S. E. 442, the agreement there considered in its salient provisions, was similar to that here considered. The Court held that the agreement was one of bargain and sale and not one of lease.
By its very terms, the rule against perpetuities applies to future contingent estates and does not apply to an estate already vested. See 41 Am. Jur., Perpetuities and Restraints on Alienation, §29. The rule against perpetuities relates to the commencement and vesting of estates and is not concerned with the duration. 2 Tiffany on Real *158Property, Third Edition, Section 397. If an estate does not vest within the arbitrary limits fixed by the rule, though it be equitable, the rule applies. See 70 C. J. S., Perpetu-ities, §11 and §12. The converse is necessarily true.
For a discussion of the effect of a lease containing a provision that on certain conditions, the lessee was entitled to the fee simple title, see In Re Murphy’s Estate (Wash.) 71 P. 2d 6.
In the instant case, the equitable estate under the provisions of the contract of Switzer, his co-owners and Meadows separates the equitable beneficial ownership of the property from the fee simple title and vests such ownership in Meadows, which vesting of the equitable title renders the rule against perpetuities inapplicable. Post v. Bailey, 110 W. Va. 504, 159 S. E. 524.
Though the subjects of restraint on alienation and per-petuities are sometimes discussed together and erroneous expressions have been made with reference thereto, they are not the same. Gray, The Rule Against Perpetuities, Fourth Edition, §278. The contract between Switzer, his co-owners and Meadows does not involve any restraint on alienation. As to a differentiation between the rule against perpetuities and the principle denying the validity of restraints on alienation, see 3 Wa\sh, Commentaries Law of Real Property, §336.
Strange to say, a covenant to lease land in perpetuity, upon the payment of stipulated annual rental, does not violate the rule against perpetuities. Thaw v. Gaffney, 75 W. Va. 229, 83 S. E. 983. Judge Williams, speaking for the Court, used the following language in the body of the opinion: “A covenant to renew perpetually does not violate the rule against perpetuities. The landlord may convey his land notwithstanding his covenant, but the covenant passes with the land, and is binding on his assignee.” See Bancroft v. Maine Sanatorium Ass’n. (Me.) 109 Atl. 585, 586: “The'test as to whether the rule against perpetuities is: *159being violated is the time of vesting and not the period of continuance.”
Where the legal title is vested within the time prescribed by the rule, though the equitable title may be retained by the grantor, the disposition is not obnoxious to the rule against perpetuities. And, if the equitable title is vested within the time provided in the rule, against perpetuities the rule likewise does not apply.
In the cases of London & S. W. R. Co. v. Gomm, 20 Ch. D. (C. A.) 562; Starcher Bros. v. Jeff Duty, supra, and Barton v. Thaw, (Pa.) 92 Atl. 312, options in perpetuity were considered. No title, equitable or legal, had theretofore vested in the grantees. Those cases are likewise inapplicable to the instant case. See Eastman Marble Co. v. Vermont Marble Co. (Mass.) 128 N. E. 177; The Rule Against Perpetuities, Gray, Fourth Edition, page 365.
The proposition is unassailable that where there is a present vesting of a legal or equitable estate in land by an agreement, such as the one here considered, the rule against perpetuities does not bar a subsequent acquisition of the remaining estate, legal or equitable, as the case may be. See Annotation 110 A. L. R. page 1450, as to the distinction under the rule against perpetuities between the time of vesting the estate and time fixed for enjoyment or possession.
See Minor on Real Property, Second Edition, Ribble, Vol. 1, §807, et seq., for an interesting and instructive discussion of the rule against perpetuities.
It is very unlikely that astute business and professional men would agree to sell a valuable parcel of real estate for the sum of one dollar, especially when such real estate brings in an annual rental of $600.00. The only condition postponed for 28 years, upon which legal title was to vest, was the payment of one dollar. Clearly, the various installment payments, starting at the inception of the agreement and continuing throughout the 28 year period were the payments of the purchase price for the four lots. I do *160not give any force or effect to the inept language of the agreement characterizing the paper or writing here considered as a lease and the monthly payments as rentals.
In my opinion, the contract between Switzer, his co-owners and Meadows is bilateral rather than unilateral. Switzer and his co-owners were required to execute and deliver a deed and Meadows was required to pay the annual rentals, all taxes and assessments levied against the premises during the term of twenty-eight years, to insure the buildings on the premises against' damages by fire and to perform other covenants. Clearly, the parties to the contract here considered were reciprocally bound to fulfill obligations to each other. I look at the entire instrument from its four corners, and considering the instrument in that manner, to me, the deed and agreement provided for the sale and purchase of land, the purchase price to be paid in monthly installments over a period of twenty-eight years; and the retention of the legal title until all payments were made.
The agreement provided that in the event of destruction of the buildings, that the insurance effectuated and paid for by Meadows should be used to repair and rebuild the buildings and that if any balance remained after the repairs or rebuilding had been done, that such balance should go to Meadows. It is also provided in the deed and agreement that though the buildings on the premises may be destroyed by fire or otherwise, the rent (payments) should continue in force.
Other significant provisions in the agreement are to the effect that Meadows could use the land as if he were the owner thereof in fee simple; that he could build buildings and make improvements on the land. These provisions contemplated that Meadows was invested with the beneficial and equitable ownership of the land upon the signing and delivery of the deed and agreement.
Though the rule against perpetuities is not one of construction of a written contract, the intent of the parties to *161such contract should be ascertained and when ascertained, if the intent violates such rule, it will not be enforced. Prichard v. Prichard, 91 W. Va. 398, 113 S. E. 256.
It is well established in this jurisdiction that the construction of a writing is for the purpose of determining the real intention of the parties. This intention must be gathered from an examination of the whole instrument and not from isolated words or phrases. Wetterwald v. Woodall, 83 W. Va. 647, 98 S. E. 890; Curtis v. Meadows, 84 W. Va. 94, 99 S. E. 286; Development Co. V. Gas Co., 121 W. Va. 284, 3 S. E. 2d 217.
I would reverse the decree of the Circuit Court of Cabell County and hold that the agreement and deed are not obnoxious to the rule against perpetuities.
I am authorized to say that Judge Given concurs in this opinion. -