1. Conditions or limitations in restraint of alienation or affecting the enjoyment of an estate in fee are repugnant to the nature and qualities of such an estate, and should be construed strictly.
2. The agreement on which the appealing defendant relies should not bar complainant from asserting the right to have the property of which he is seized as a tenant in common of an undivided one-fifth, sold in partition proceedings. It is repugnant to the nature of his estate for the agreement to prohibit his power of alienation for an indefinite period which may extend beyond his lifetime. It is also against public policy to have residential property withdrawn from the market in times when there is a great demand for such property.
3. Although the agreement is specific as to how the share of a married co-tenant shall be devised, three of the co-tenants are single and should they never marry the agreement leaves them free to devise their shares as they see fit. Further, the agreement is not binding on the youngest co-tenant, an infant at the time of its execution and not a party to the agreement. She is absolutely free to deal with her undivided interest by sale, mortgage, partition or will. Such agreement will not stand in the way of the partition here sought by the complainant co-tenant.
4. The agreement between the co-tenants was breached when the one who was to manage the properties, and his sister who substituted for him while he was on war service, failed to account to complainant for his share of the net rents. The remaining two co-tenants concurred in this breach, thus presenting an impelling reason why the agreement should now be regarded as of no binding effect on complainant.
5. The agreement violates the rule against perpetuities. There being no time limit fixed for the operation of the agreement, and unanimous consent being required for the right of any of the tenants in common who are parties to the agreement to dispose of their shares, the agreement, if effectual, will be for the lives of the parties thereto and perhaps for the lives of the children of those of them who die leaving issue.
6. The agreement is vague, uncertain, indefinite, unfair and against public policy, and lacks mutuality as between the co-tenants. It could not be specifically enforced in our courts.
7. The right of partition between co-tenants is an absolute right which should not be denied in the absence of an explicit agreement not to resort to partition. It certainly should not be denied to a co-tenant in constructive possession of his interest and whose co-owners not only refuse to permit him to convey to a stranger but also refuse to purchase his interest. By partition sale the estate in common is assumed to realize fair market value and thus determine what sum those co-tenants who did not desire a partition should have offered to pay to a co-tenant who wished to dispose of his interest.
PER CURIAM.
The decree appealed from is affirmed, for the reasons stated in the opinion filed in the court below.
For affirmance — THE CHIEF-JUSTICE, BODINE, DONGES, COLIE, WACHENFELD, EASTWOOD, BURLING, WELLS, DILL, FREUND, McLEAN, SCHETTINO, JJ. 12.
For reversal and to remand — HEHER, J. 1.