personal representative with sufficient assets, the heir could have called upon him to pay the purchase money. In this case, however, the heir did not seek this relief, but sought merely to enforce the covenant in his own behalf against the heirs of the lessor, and to make payment aliunde. In Henrihan v. Gallagher (1862) 9 Grant, Ch. (U. C.) 488, affirmed in (1864) 2 U. C. Err. & App. 338, and overruling the dictum of Robinson, Ch. J., in Sampson v. McArthur (1860) 8 Grant, Ch. (U. C.) 72, where a lease contained a covenant giving to the lessee, his heirs and assigns, the privilege of purchasing the land, it was held that upon the death of the lessee the privilege of purchase passed to the heirs, and not to the administratrix of the lessee, so that the administratrix was without power to sell or assign the privilege. Said the court: "The plaintiff here contends that the administratrix could and did sell, not merely the term, but the right to purchase the fee, and yet admits that that right did not pass to the administratrix, but to the heirs at law. If the administratrix did not herself take the right, she could not give it to anyone else, and we think she did not take it. For whose benefit could she exercise it? It seems clear, on authority and principle, that the heirs at law could not call on her to pay the purchase money out of the personalty, for the ancestor had not in his lifetime elected to purchase. If the heirs at law could not demand this, who could? Could the administratrix, by applying the personal estate of the testator, convert it into realty? And would the next of kin take realty under the right of their ancestor, and, if so, on what principle known to the law? Was the right of the ancestor to purchase and acquire realty a right that would go through the administratrix to his next of kin, and has it ever so gone? If it would not, then, how could the administratrix assign it? The term may well subsist in the administratrix, and the right to acquire the realty in the heir at law, even to the destruction of the term when the latter exercises his option to purchase. But it is said that the right to purchase is contained in a covenant which runs with the term, i. e., the land. If this were so, then, as the term passed to the administratrix, the right to purchase must have gone, also; but I think I have shown that it could not go to her, and, if so, there is an end of that position. I do not, however, think that the right to purchase is in any way attached to the term; it is a right of the individual, quite independent of the term, which may subsist without it, or with it; or, as I think is the proper construction of the instrument of lease, there was a contract on the part of the Canada Company to sell to the lessee at any time within ten years, at a fixed price, giving him, in the meantime, a lease. It is not like the case, as was argued, of a covenant for a renewal of a lease. The right to purchase the purchase itself—is something outside and beyond the lease altogether, of a higher and totally different character,-which the lease, merely as such, will not bear and carry with it. The covenant here gives the right to purchase to the lessee, his heirs, and assigns." c. View that option passes to personal representatives. In Bean v. Reynolds (1899) 15 App. D. C. 125, where, in a lease to N. for ninety-nine years, the lessor covenanted with "the said Norfleet, his heirs, executors, administrators, and assigns, that the said Norfleet, his executors, administrators, and assigns, may, at any time during the continuance of the present term or demise, purchase the said piece or parcel of land" it was held that the right of purchase did not go to the heir at law of any intestate assignee of the lease, but passed through the process of administration to his personal representative, to whom the leasehold interest also passed. Said the court: "But, under the authority of the case of Prout v. Roby (1872) 15 Wall. (U. S.) 471, 21 L. ed. 58, it is contended, on behalf of the appellants, that the option to purchase the fee simple within the term descended to the heirs at law of Thomas Reynolds. The facts, however, in the case of Prout v. Roby, were very different from those in the case now before us. There the leasehold interest was created as a trust for the benefit of a married woman, 'her heirs and assigns,' and with a covenant in the lease that, if the married woman, 'her heirs or assigns,' should at any time thereafter pay a certain stipulated sum of money to the lessor, his heirs or assigns, the latter should thereupon convey the property in fee simple to the married woman, her heirs and assigns. Moreover, the lease was perpetual, being for ninety-nine years, renewable forever. It is evident, therefore, that, while the nominal title to the lease was in the trustee or his personal representatives, or, perhaps, in the married woman herself, or her personal representatives, yet the true beneficial interest, both in the leasehold estate and in the accompanying covenant for the purchase of the fee, passed, upon the death of the married woman, to her heirs at law. . From all this it is very clear that the circumstances of the case of Prout v. Roby were very different from those of the present case. There a trust was created for the benefit of a married woman and her heirs; and to her and to her heirs the right was given to augment the trust by the purchase of the feesimple title. It was not intended by the decision in that case to change the laws governing the devolution of property, real or personal; nor was it intended to be held that, in all cases where a leasehold interest was created, a covenant for the purchase of the fee should, upon the death of the lessee intestate, become separated from the leasehold interest and vest in a different person. Even a casual glance at the consequences of such an interpretation of the decision will show that no such a construction of it was intended. For if, upon the death of the lessee intestate, the leasehold interest devolved upon one party, the personal representative, and the right of purchase on the heir at law, and we assume them to be different persons, as they might well be, then it would be in the power of either one to destroy the interest or right of the other. The personal representative, by surrendering the lease, might destroy the right of the heir to purchase; and the heir, by purchasing the fee, might cause the leasehold interest to be merged in the fee. It is evident that the decision in the case of Prout v. Roby applies only where at least, in equity, if not in law-the leasehold interest and the right to purchase the fee are vested in one and the same person. This cannot be the case where the leasehold interest devolves as substantial personal property, and not merely in title alone, upon the personal representative of the deceased lessee, the executor, or administrator, to be disposed of by him under the Statute of Distributions, or according to the special provisions of a last will or testament. Here the covenant for purchase is a covenant that runs with the land in the possession of such personal representative, distributee, or legatee. The express provision of the covenant is that the right of purchase is to be exercised, not by the heir at law, but the executor, administrator, or assigns during the pendency of the term. It is true that there is some incongruity, or apparent inconsistency, and, per haps, some confusion, in the deed, in the use of the words 'heirs and assigns,' and the words 'executor, administrator and assigns;' but we think that it is very clear from the deed that the estate created or intended to be created was merely personalty, and that the right of purchase was intended to be exercised by the person or persons who, for the time being, should be in the enjoyment of the estate created. That, when the fee should be purchased, the leasehold would be merged in it and the whole estate would go thereafter as realty, can, of course, make no difference in the determination of the person or persons who are to exercise the right of purchase. The covenant is that the said Ward, his heirs, executors, and administrators, doth covenant, promise and agree to and with the said Norfleet, his heirs, executors, administrators, and assigns, that the said Norfleet, his executors, administrators and assigns may, at any time during the continuance of the present term or demise, purchase the said piece or parcel of land, etc., etc.;' and from this covenant the word 'heirs' seems to have been studiously excluded from the enumeration of those who may elect to purchase the land for the stipulated price." hold in the lifetime of Ralph Adams, the property would descend to his executor, if he appointed one, or to his administrator, if he did not appoint one, as part of his personal estate. Ralph Adams having died intestate, and without having given any notice in his lifetime, it can hardly be disputed that his leasehold property passed to his administrator upon his taking out administration. Then, the option which is now to be exercised, not having been exercised by Ralph Adams in his lifetime, the person who is to exercise it after his death is his adminis have to bear in mind that the administrator, who had to exercise the option, was also his heir at law; but as heir at law of his father he had no right whatever to exercise the option in any way. It was in his capacity as administrator, and subject to the equities and duties which his position as administrator imposed upon him, and in that capacity only, that he could exercise the option. . . . In that view of the case, it appears to me, first of all, that the right of option, as one of the provisions contained in the lease, passed with the leasehold estate to the administrator upon his taking out administration to the deceased intestate, and that he alone was capable of exercising that option. That appears to me to decide the question. I decide it entirely upon the terms of that particular covenant. It was only in the capacity of administrator of the deceased intestate that Ralph Adams had the right to exercise this option and to call for a conveyance of the freehold estate, and inasmuch as he exercised that option, and called for a conveyance of the freehold estate as the holder of the leasehold interest, so the benefit to be derived from any exercise of that option by him in his capacity of administrator must be for the benefit of the same parties as those for whom he held the leasehold interest." In Re Adams (1884) L. R. 27 Ch. Div. (Eng.) 394, a lease of land contained a covenant by the lessor with the lessee, "his executors, administrator, and no one else. No doubt we trators, and assigns," giving to the lessee, "his executors, administrators, or assigns," the option of purchasing the fee simple, upon the exercise of which the covenant required the lessor, his heirs or assigns, to convey the fee simple to the lessee, "his heirs and assigns," or as he or they shall direct or appoint; the lessee died intestate, and nearly twenty years after his death, but before the expiration of the term, his heir, who was also administrator of his personal estate, called on the devisee of the lessor to convey the fee simple to him, in accordance with the covenant, and a conveyance was executed accordingly. The heir, as such, afterwards contracted to sell part of the property thus conveyed to him. The right of the heir (who was also administrator) to make a good title to the land without the concurrence of the next of kin of the lessee was denied, upon the ground that under the covenant, properly construed, the option to purchase the land was attached to the lease, and formed part of the lessee's personal estate, so that the same passed to the administrator, and not to the heir, as heir. Said Baggallay, L. J., speaking for the court: "It turns simply upon the terms of the covenant contained in the original lease. It provides that if Adams, his executors, administrators, or assigns, should be minded and desirous of purchasing, he or they should give notice. Of course, it being a leasehold property, in the absence of any notice being given converting it into free Where the administratrix of the lessee is also his sole devisee, her right to enforce the option of purchase contained in the lease, to the same extent that the testator could, if alive, is beyond question. Thommen v. Smith (1918) 88 N. J. Eq. 476, 103 Atl. 25. An action for specific performance of an option to purchase real estate, contained in a lease, not exercised by the lessee during his lifetime, should be brought by the lessee's executor, or by the legatee with his approval, as the lease, and the option incident to it, go to the legatee through the executor, and not to the heir. McCormick v. Stephany (1898) 57 N. J. Eq. 257, 41 Atl. 840, retrial in (1900) 61 N. J. Eq. 208, 48 Atl. 25. It appears, however, that the question was not squarely before the court, and it was said: "As the complainant is not only executrix, but also general legatee and devisee of Mr. McCormick, the proposed vendee, the vexatious questions which sometimes make difficulty between the executrix and legatee, and the heir or devisee, of such a vendee, as to whether or not the effect of the enforcement of the option is to work a conversion of the purchase money payable by the vendee into real estate, and to give the purchased lands to the heir or devisee of the deceased contract-vendee, are not raised, because the complainant, in one capacity or the other, represented the deceased vendee, both as to his personalty and his realty." An unexercised option to purchase goes primarily to the executor of the lessee, and afterwards to his legatee. Fleet v. South Jersey Title & Finance Co. (1924) N. J. Eq., 124 Atl. 152 (holding that the executor could not exercise the option in her individual capacity to her personal advantage, but that, having exercised it, the advantage or profits therefrom must be held as profits accruing to the estate). Upon the death of the lessee of real property, during the term, and before having exercised the option to purchase contained in the lease, the lease, with the accompanying right to purchase, passes to his administratrix, and not to his heirs. Gustin v. Union School Dist. (1893) 94 Mich. 502, 34 Am. St. Rep. 361, 54 N. W. 156. And specific performance for the conveyance of the land may be enforced in favor of one to whom the administratrix assigned the lease and contract, and who accepts within the time limited. Ibid. Other cases, also, have held that upon the death of the lessee the option in the lease passes to his personal representatives, who may enforce specific performance. Walker v. Bradley (1915) 89 Mise. 516, 153 N. Y. Supp. 686, 14 Mills, 53; Hagar v. Buck (1872) 44 Vt. 285, 8 Am. Rep. 368. See also Rickard v. Dana (1902) 74 Vt. 74, 52 Atl. 113. The failure of both the lessee and his assignee to fulfil a covenant in the lease, binding the lessee to build a house upon the premises and make repairs, upon pain of ejection, does not defeat the right of the assignee's administrator to exercise the option contained in the lease, where the lessor, by waiting until the rights of the assignee have become valuable, has waived his right to enter and take possession. Hagar v. Buck (1872) 44 Vt. 285, 8 Am. Rep. 368, supra. And if there was any forfeiture, the tender of payment of the purchase price and accrued rents saved it. Ibid. A. B. PARMALEE et al. V. CHARLES MORRIS, Appt. Michigan Supreme Court - June 5, 1922. (218 Mich. 625, 188 N. W. 330.) L. S. E. 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.] (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 Barnes & Stowers, for appellant: Restrictions against alienation to and occupancy of property by negroes or other persons are invalid. Title Guarantee & T. Co. v. Garrott, 42 Cal. App. 152, 183 Pac. 470; Mandlebaum v. McDonell, 29 Mich. 78, 18 Am. Rep. 61; Buchanan v. Warley, 245 U. S. 74, 62 L. ed. 161, L.R.A.1918C, 210, 38 Sup. Ct. Rep. 16, Ann. Cas. 1918A, 1201; Ferguson v. Gies, 82 Mich. 358, 9 A.L.R. 589, 21 Am. St. Rep. 576, 46 N. W. 718; Gandolfo v. Hartman, 16 L.R.A. 277, 49 Fed. 181. A restrictive covenant to be enforceable in equity must be reasonable. Meaney v. Stork, 80 N. J. Eq. 65, 83 Atl. 492; Gandolfo v. Hartman, supra; Buchanan v. Warley, 245 U. S. 74, 62 L. ed. 161, L.R.A1918C, 210, 38 Sup. Ct. Rep. 16, Ann. Cas. 1918A, 1201; Title Guarantee & T. Co. v. Garrott, supra; Windemere-Grant Improv. & Protective Asso. v. American State Bank, 205 Mich. 539, 172 N. W. 29; 18 C. J. 397-399. The constitutional guaranty of equal protection without discrimination on account of color, race, religion, etc., includes the right to acquire, possess, and occupy property of every kind. Corfield v. Coryell, 4 Wash. C. C. 371, Fed. Cas. No. 3,230; Truax v. Raich, 239 U. S. 33, 60 L. ed. 131, L.R.A.1916D, 545, Ann. Cas. 1917B, 383. The restriction also abridges the privileges and immunities guaranteed by the 14th Amendment, and deprives those affected of the equal protection of the law. Slaughter-House Cases, 16 Wall, 36, 21 L. ed. 394. Messrs. Doty & Cram for appellees. Moore, J., delivered the opinion of the court: The chancellor who heard this case filed a written opinion therein, which so clearly states the questions involved that we reproduce it here: "At the time the Ferry Farm addition to the city of Pontiac was platted, the lots were sold subject to the following uniform restrictions: "No building shall be built within 20 feet of the front line of the lot. Said lot shall not be occupied by a colored person, nor for the purpose of doing a liquor business thereon.' "Defendant Morris, and Anna Morris, his wife, both colored, have entered into a contract to purchase a lot in the subdivision, and the bill of complaint was filed by plaintiffs, who are owners of lots on the same subdivision and residents of the neighborhood, to restrain defendants from violating the restriction by occupying the premises in question. The record presents the sole question as to whether or not the restriction against the occupancy of the premises by a colored person is void as contravening the provisions of the 13th and 14th Amendments to the Constitution of the United States, while plaintiffs insist that the provisions of the Federal Constitution have no application, and that the restriction is a matter of a purely personal action of the owner of the premises, and is valid and enforceable. "Every owner of land in fee is invested with full right, power, and authority, when he conveys a portion away, to impose such restrictions and limitations on its use as will in his judgment prevent the grantee, or those claiming under him, from making such use of the premises conveyed as will impair the use or diminish the value of the part which he retains. The only limitation on this right is the requirements that the restrictions be reasonable; not contrary to public policy, and not create an unlawful restraint on alienation. These rights have been repeatedly recognized by our supreme court, and in a recent case the following quotation from 7 R. C. L. 1, 114, is cited with approval. |