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Statutes. Regularity of Enactment. Review by the Courts

1916 Virginia law review  
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more » ... out Early Journal Content at http://about.jstor.org/participate--jstor/individuals/early-journal--content. JSTOR is a digital library of academic journals, books, and primary source objects. JSTOR helps people discover, use, and build upon a wide range of content through a powerful research and teaching platform, and preserves this content for future generations. JSTOR is part of ITHAKA, a not--for--profit organization that also includes Ithaka S+R and Portico. For more information about JSTOR, please contact support@jstor.org. VIRGINIA LAW REVIEW VIRGINIA LAW REVIEW states it is held that the power of disposition by the fee simple owner may be restricted within reasonable limits by the terms of the grant, e. g., that the grantee shall not convey to particular persons, or within a limited time, or that he may use the property only for a specfied purpose. French v. Quincy, 3 Allen (Mass.) 9. See Warner v. Bennett, 31 Conn. 468. See also, MINOR, REAL PROPERTY, ? 162; 1 WASHBURN, REAL PROPERTY, 5 ed., 85. Indeed there seem to be several well-defined exceptions to the rule that a complete jus disponendi is a sine qua non of a fee simple estate: (1) A reasonable restriction may 'be made, such as restriction on alienatfon of a lot containing a mausoleum. Camp v. Cleary, 76 Va. 140. (2) Restrictions may be placed on property conveyed to a married woman as her equitable separate estate. Wells v. McCall, 64 Penn. St. 207. (3) Restrictions may be made where the grantee is a corporation. Stuyvesant v. Mayor of New York, 11 Paige (N. Y.) 414; Frentch' v. Quincy, supra. (4) A restriction may be annexed to a tract other than that granted. MINOR, REAL PROPERTY, ? 584; 2 TH. Co. LIT. 31. (5) A restriction may be made when annexed to a bond. MINOR, REAL PROPERTY, ? 585; 2 TH. Co. LIT. 29. See Freeman v. Freeman, 2 Vern. 233. It is obvious that the only exception open to the principal case is the first. In connection with that exception there are two diametrically opposed classes of decisions. One goes upon the theory that a restraint upon the alienation of a fee simple title even for a limited period, is utterly inconsistent with, and repugnant to, the nature of such an estate; flhat by the grant or devise of a fee, the whole power over and in it, is vested in the grantee or devisee-one of the most vital characteristics thereof being the power of unrestrained alienation. Mandlebaum v. McDonell, supra; Latimner v. Waddell, 119 N. C. 370, 26 S. E. 122, 3 L. R. A. (N. S.) 668; Greene v. Greene, 125 N. Y. 506, 21 Am. St. Rep. 743, 26 N. E. 739; Clark v. Clalk, 99 Md. 356, 58 Atl. 24. The other class of cases hold that a limited restraint upon the alienation, if for a reasonalble time, is a valid restriction. Libby v. Clark,
doi:10.2307/1064152 fatcat:oixhrtodkvawnkexqlbourcmxe