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personal representative with sufficient option to purchase. But it is said that assets, the heir could have called upon the right to purchase is contained in him to pay the purchase money. In this a covenant which runs with the term, case, however, the heir did not seek i, e., the land. If this were so, then, this relief, but sought merely to en- as the term passed to the adminisforce the covenant in his own behalf tratrix, the right to purchase must against the heirs of the lessor, and to have gone, also; but I think I have make payment aliunde.

shown that it could not go to her, and, In Henrihan v. Gallagher (1862) 9 if so, there is an end of that position. Grant, Ch. (U. C.) 488, affirmed in I do not, however, think that the right (1864) 2 U. C. Err. & App. 338, and to purchase is in any way attached overruling the dictum of Robinson, to the term; it is a right of the inCh, J., in Sampson v. McArthur (1860) dividual, quite independent of the 8 Grant, Ch. (U.C.) 72, where a lease term, which may subsist without it, or contained a covenant giving to the with it; or, as I think is the proper lessee, his heirs and assigns, the priv- construction of the instrument of lease, ilege of purchasing the land, it was there was a contract on the part of held that upon the death of the lessee the Canada Company to sell to the the privilege of purchase passed to lessee at any time within ten years, the heirs, and not to the administra- at a fixed price, giving him, in the trix of the lessee, so that the admin- meantime, a lease. It is not like the istratrix was without power to sell case, as was argued, of a covenant for or assign the privilege. Said the a renewal of a lease. The right to court: “The plaintiff here contends purchase—the purchase itself—is that the administratrix could and did something outside and beyond the sell, not merely the term, but the right lease altogether,-of a higher and to purchase the fee, and yet admits totally different

different character,—which that that right did not pass to the ad- the lease, merely as such, will not bear ministratrix, but to the heirs at law. and carry with it. The covenant here If the administratrix did not herself gives the right to purchase to the take the right, she could not give it lessee, his heirs, and assigns.” to anyone else, and we think she did

c. View that option passes to personal not take it. For whose benefit could she exercise it? It seems clear, on

representatives. authority and principle, that the heirs

In Bean v. Reynolds (1899) 15 App. at law could not call on her to pay

D. C. 125, where, in a lease to N. for the purchase money out of the per

ninety-nine years, the lessor covesonalty, for the ancestor had not in

nanted with "the said Norfleet, his his lifetime elected to purchase. If

heirs, executors, administrators, and the heirs at law could not demand assigns, that the said Norfleet, his exthis, who could? Could the adminis- ecutors, administrators, and assigns, tratrix, by applying the personal es

may, at any time during the continutate of the testator, convert it into ance of the present term or demise, realty? And would the next of kin purchase the said piece or parcel of take realty under the right of their

land” it was held that the right of purancestor, and, if so, on what principle chase did not go to the heir at law of known to the law? Was the right of any intestate assignee of the lease, the ancestor to purchase and acquire but passed through the process of adrealty a right that would go through

ministration to his personal reprethe administratrix to his next of kin, sentative, to whom the leasehold and has it ever so gone? If it would interest also passed. Said the court: not, then, how could the administra- “But, under the authority of the case trix assign it? The term may well of Prout v. Roby (1872) 15 Wall. subsist in the administratrix, and the (U. 471, 21 L. ed. 58, it is conright to acquire the realty in the heir tended, on behalf of the appellants, at law, even to the destruction of the that the option to purchase the fee term when the latter exercises his simple within the term descended to the heirs at law of Thomas Reynolds. persons, as they might well be, then The facts, however, in the case of it would be in the power of either one Prout v. Roby, were very different to destroy the interest or right of the from those in the case now before us. other. The personal representative, There the leasehold interest was by surrendering the lease, might decreated as a trust for the benefit of a stroy the right of the heir to purchase; married woman, 'her heirs and as- and the heir, by purchasing the fee, signs,' and with a covenant in the might cause the leasehold interest to lease that, if the married woman, 'her be merged in the fee. It is evident heirs or assigns,' should at any time that the decision in the case of Prout thereafter pay a certain stipulated v. Roby applies only where—at least, sum of money to the lessor, his heirs in equity, if not in law—the leasehold or assigns, the latter should thereupon interest and the right to purchase the convey the property in fee simple to fee are vested in one and the same the married woman, her heirs and as- person.

This cannot be the case signs. Moreover, the lease was per- where the leasehold interest devolves petual, being for ninety-nine years, as substantial personal property, and renewable forever. It is evident, not merely in title alone, upon the therefore, that, while the nominal personal representative of the detitle to the lease was in the trustee ceased lessee, the executor, or ador his personal representatives, or, ministrator, to be disposed of by him perhaps, in the married woman her- under the Statute of Distributions, self, or her personal representatives, or according to the special provisions yet the true beneficial interest, both of a last will or testament. Here in the leasehold estate and in the ac- the covenant for purchase is a covecompanying covenant for the pur- nant that runs with the land in the chase of the fee, passed, upon the possession of such personal repredeath of the married woman, to her sentative, distributee, or legatee. The heirs at law.

From all this express provision of the covenant is it is very clear that the circumstances that the right of purchase is to be of the case of Prout v. Roby were very exercised, not by the heir at law, but different from those of the present the executor, administrator, or assigns case. There a trust was created for during the pendency of the term. It the benefit of a married woman and is true that there is some incongruits, her heirs; and to her and to her heirs or apparent inconsistency, and, perthe right was given to augment the haps, some confusion, in the deed, in trust by the purchase of the fee- the use of the words 'heirs and assimple title. It was not intended by signs,' and the words 'executor, adthe decision in that case to change ministrator and assigns;' but we think the laws governing the devolution of that it is very clear from the deed property, real or personal; nor was it that the estate created or intended intended to be held that, in all cases to be created was merely personalty, where a leasehold interest was created, and that the right of purchase was ina covenant for the purchase of the tended to be exercised by the person fee should, upon the death of the or persons who, for the time being, lessee intestate, become separated should be in the enjoyment of the esfrom the leasehold interest and vest tate created. That, when the fee in a different person. Even a casual should be purchased, the leasehold glance at the consequences of such would be merged in it and the whole an interpretation of the decision will estate would go thereafter as realty, show that no such a construction of can, of course, make no difference in it was intended. For if, upon the the determination of the person or per. death of the lessee intestate, the lease- sons who are to exercise the right of hold interest devolved upon one party, purchase. The covenant is that the the personal representative, and the said Ward, his heirs, executors, and right of purchase on the heir at law, administrators, doth covenant, promise and we assume them to be different and agree to and with the said Norfleet,

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his heirs, executors, administrators, hold in the lifetime of Ralph Adams, and assigns, that the said Norfleet, the property would descend to his exhis executors, administrators and as- ecutor, if he appointed one, or to his signs may, at any time during the con- administrator, if he did not appoint tinuance of the present term or demise, one, as part of his personal estate. purchase the said piece or parcel of Ralph Adams having died intestate, land, etc., etc.;' and from this cove- and without having given any notice nant the word 'heirs' seems to have in his lifetime, it can hardly be disputbeen studiously excluded from the ed that his leasehold property passed enumeration of those who may elect to his administrator upon his taking to purchase the land for the stipulated out administration. Then, the option price."

which is now to be exercised, not havIn Re Adams (1884) L. R. 27 Ch. ing been exercised by Ralph Adams in Div. (Eng.) 394, a lease of land con- his lifetime, the person who is to extained a covenant by the lessor with ercise it after his death is his administhe lessee, "his executors, adminis- trator, and no one else. No doubt we trators, and assigns," giving to the have to bear in mind that the adminislessee, "his executors, administrators, trator, who had to exercise the option, or assigns," the option of purchasing was also his heir at law; but as heir at the fee simple, upon the exercise of law of his father he had no right whatwhich the covenant required the les- ever to exercise the option in any way. sor, his heirs or assigns, to convey the It was in his capacity as administrafee simple to the lessee, “his heirs tor, and subject to the equities and and assigns,"

he or they duties which his position as adminisshall direct or appoint; the lessee died trator imposed upon him, and in that intestate, and nearly twenty years capacity only, that he could exercise after his death, but before the ex- the option.

In that view of piration of the term, his heir, who the case, it appears to me, first of all, was also administrator of his personal that the right of option, as one of the estate, called on the devisee of the provisions contained in the lease, lessor to convey the fee simple to him, passed with the leasehold estate to the in accordance with the covenant, and administrator upon his taking out ada conveyance was executed according- ministration to the deceased intestate, ly. The heir, as such, afterwards con- and that he alone was capable of extracted to sell part of the property ercising that option. That appears to thus conveyed to him. The right of me to decide the question. I decide it the heir (who was also administra- entirely upon the terms of that partictor) to make a good title to the land ular covenant. It was only in the without the concurrence of the next capacity of administrator of the deof kin of the lessee was denied, upon ceased intestate that Ralph Adams the ground that under the covenant, had the right to exercise this option properly construed, the option to pur- and to call for a conveyance of the chase the land was attached to the freehold estate, and inasmuch as he lease, and formed part of the lessee's exercised that option, and called for personal estate, so that the same a conveyance of the freehold estate passed to the administrator, and not as the holder of the leasehold interest, to the heir, as heir. Said Baggallay, so the benefit to be derived from any L. J., speaking for the court: "It exercise of that option by him in his turns simply upon the terms of the capacity of administrator must be for covenant contained in the original the benefit of the same parties as those lease. It provides that if Adams, his for whom he held the leasehold interexecutors, administrators, or assigns, est.” should be minded and desirous of pur- Where the administratrix of the chasing, he or they should give notice. lessee is also his sole devisee, her Of course, it being a leasehold prop- right to enforce the option of purerty, in the absence of any notice chase contained in the lease, to the being given converting it into free- same extent that the testator could, if alive, is beyond question. Thommen must be held as profits accruing to the v. Smith (1918) 88 N. J. Eq. 476, 103 estate). Atl. 25.

Upon the death of the lessee of real An action for specific performance property, during the term, and before of an option to purchase real estate, having exercised the option to purcontained in a lease, not exercised by chase contained in the lease, the lease, the lessee during his lifetime, should with the accompanying right to purbe brought by the lessee's executor, chase, passes to his administratrix, or by the legatee with his approval, and not to his heirs. Gustin v. Union as the lease, and the option incident School Dist. (1893) 94 Mich. 502, 34 to it, go to the legatee through the ex- Am. St. Rep. 361, 54 N. W. 156. And ecutor, and not to the heir. McCor- specific performance for the conveymick v. Stephany (1898) 57 N. J. Eq. ance of the land may be enforced in 257, 41 Atl. 840, retrial in (1900) 61 favor of one to whom the administraN. J. Eq. 208, 48 Atl. 25. It appears, trix assigned the lease and contract, however, that the question was not and who accepts within the time squarely before the court, and it was limited. Ibid. said: "As the complainant is not only Other cases, also, have held that executrix, but also general legatee upon the death of the lessee the opand devisee of Mr. McCormick, the tion in the lease passes to his personal proposed vendee, the vexatious ques- representatives, who may enforce tions which sometimes make difficulty specific performance. Walker v. Bradbetween the executrix and legatee, ley (1915) 89 Mise. 516, 153 N. Y. and the heir or devisee, of such a Supp. 686, 14 Mills, 53; Hagar v. Buck vendee, as to whether or not the effect (1872) 44 Vt. 285, 8 Am. Rep. 368. of the enforcement of the option is to See also Rickard v. Dana (1902) 74 work a conversion of the purchase Vt. 74, 52 Atl. 113. money payable by the vendee into real The failure of both the lessee and estate, and to give the purchased lands his assignee to fulfil a covenant in the to the heir or devisee of the deceased lease, binding the lessee to build a contract-vendee, are not raised, be- house upon the premises and make recause the complainant, in one capac- pairs, upon pain of ejection, does not ity or the other, represented the de- defeat the right of the assignee's adceased vendee, both as to his person- ministrator to exercise the option conalty and his realty."

tained in the lease, where the lessor, An unexercised option to purchase by waiting until the rights of the asgoes primarily to the executor of the

signee have become valuable, has lessee, and afterwards to his legatee.

waived his right to enter and take Fleet v. South Jersey Title & Finance Co. (1924) N. J. Eq. -, 124 Atl.

possession. Hagar v. Buck (1872) 44

Vt. 285, 8 Am. Rep. 368, supra. 152 (holding that the executor could not exercise the option in her individ

if there was any forfeiture, the tender ual capacity to her personal advan- of payment of the purchase price and tage, but that, having exercised it, accrued rents saved it. Ibid. the advantage or profits therefrom

L. S. E.

A. B. PARMALEE et al.

Michigan Supreme Court - June 5, 1922.

(218 Mich. 625, 188 N. W. 330.) Covenants, $ 22 against occupation of property by colored persons

validity. A covenant forbidding the occupation of property by colored persons is not forbidden by the Federal Constitution nor contrary to public policy.

[See note on this question beginning on page 1185.]

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(218 Mich. 625, 188 N. W. 330.) APPEAL by defendant from a decree of the Circuit Court for Oakland County, in Chancery (Gillespie, J.) modifying a temporary injunction in a suit to restrain violation of a restriction in a deed as to the occupancy of certain premises by colored persons. Affirmed.

The facts are stated in the opinion of the court.

Messrs. W. Hayes McKinney and platted, the lots were sold subject to Barnes & Stowers, for appellant: the following uniform restrictions: Restrictions against alienation to

“ 'No building shall be built withand occupancy of property by negroes in 20 feet of the front line of the lot. or other persons are invalid.

Said lot shall not be occupied by a Title Guarantee & T. Co. v. Garrott,

colored person, nor for the purpose 42 Cal. App. 152, 183 Pac. 470; Mandlebaum v. McDonell, 29 Mich. 78, 18

of doing a liquor business thereon.' Am. Rep. 61; Buchanan v. Warley,

"Defendant Morris, and Anna 245 U. S. 74, 62 L. ed. 161, L.R.A.1918Č, Morris, his wife, both colored, have 210, 38 Sup. Ct. Rep. 16, Ann. Cas. entered into a contract to purchase 1918A, 1201; Ferguson v. Gies, 82 a lot in the subdivision, and the bill Mich. 358, 9 A.L.R. 589, 21 Am. St. of complaint was filed by plaintiffs, Rep. 576, 46 N. W. 718; Gandolfo v.

who are owners of lots on the same Hartman, 16 L.R.A. 277, 49 Fed. 181.

subdivision and residents of the A restrictive covenant to be enforceable in equity must be reason

neighborhood, to restrain defendable.

ants from violating the restriction Meaney v. Stork, 80 N. J. Eq. 65, 83

by occupying the premises in quesAtl. 492; Gandolfo v. Hartman, supra; tion. The record presents the sole Buchanan v. Warley, 245 U. S. 74, 62 · question as to whether or not the reL. ed. 161, L.R.A1918C, 210, 38 Sup. striction against the occupancy of Ct. Rep. 16, Ann. Cas. 1918A, 1201; the premises by a colored person is Title Guarantee & T. Co. v. Garrott,

void as contravening the provisions supra; Windemere-Grant Improv. &

of the 13th and 14th Amendments Protective Asso. V. American State

to the Constitution of the United Bank, 205 Mich. 539, 172 N. W. 29; 18 C. J. 397-399.

States, while plaintiffs insist that The constitutional guaranty of the provisions of the Federal Constiequal protection without discrimina- tution have no application, and that tion on account of color, race, religion, the restriction is a matter of a pureetc., includes the right to acquire, pos- ly personal action of the owner of sess, and occupy property of every the premises, and is valid and enkind.

forceable. Corfield v. Coryell, 4 Wash. C. C.

“Every owner of land in fee is in371, Fed. Cas. No. 3,230; Truax v.

vested with full right, power, and Raich, 239 U. S. 33, 60 L. ed. 131, L.R.A.1916D, 545, Ann. Cas. 1917B, authority, when he conveys a portion 383.

away, to impose such restrictions and The restriction also abridges the

limitations on its use as will in his privileges and immunities guaranteed judgment prevent the grantee, or by the 14th Amendment, and deprives those claiming under him, from those affected of the equal protection making such use of the premises of the law.

conveyed as will impair the use or Slaughter-House Cases, 16 Wall, 36, diminish the value of the part which 21 L. ed. 394.

he retains. The only limitation on Messrs. Doty & Cram for appellees. this right is the requirements that

Moore, J., delivered the opinion of the restrictions be reasonable; not the court:

contrary to public policy, and not The chancellor who heard this create an unlawful restraint on case filed a written opinion therein, alienation. These rights have been which so clearly states the questions repeatedly recognized by our suinvolved that we reproduce it here: preme court, and in a recent case

“At the time the Ferry Farm ad- the following quotation from 7 R. dition to the city of Pontiac was C. L. 1, 114, is cited with approval:

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