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Hamm v. Hazelwood

Supreme Court of Virginia

June 23, 2016

EDWARD L. HAMM, JR.
v.
CHARLES W. HAZELWOOD, JR., ADMINISTRATOR DBN FOR THE ESTATE OF MELBA BIGELOW CLARKE, DECEASED, ET AL.

         From The Circuit Court of Fairfax County, Grace Burke Carroll, Judge.

          OPINION

          JUSTICE D. ARTHUR KELSEY

         The circuit court declared void a provision in a real property deed that sought to create a contingent reversionary interest in the grantor and her heirs. The beneficiary of that interest, Edward L. Hamm, Jr., argues on appeal that the provision, known as a possibility of reverter at common law, lawfully vested him with the reversionary interest. We agree and, thus, reverse the court's holding to the contrary.

         I.

         In 1989, Dorothy Bigelow Hamm executed and recorded a deed of gift transferring her one-half interest in a parcel of property to her sister, Melba Bigelow Clarke.[1] Dorothy's husband joined in the conveyance. The deed of gift reserved a life estate for Dorothy for the duration of her life. She died in 2004, thereby extinguishing the life estate. In her will, Dorothy left any interest she had in the property to her son, Edward. Melba had children, including a son, Reginald Wayne Clarke, at the time of Dorothy's deed of gift. In the deed of gift, Dorothy included a provision that specifically mentioned Reginald:

The PROPERTY hereby conveyed shall AUTOMATICALLY REVERT to Dorothy Bigelow Hamm, one of the parties of the first part, in the event Reginald Wayne Clarke, son of the party of the second part, ever acquires any interest therein by grant, inheritance or otherwise or is otherwise permitted to occupy, even temporarily, any portion of said property.

J.A. at 7.[2] Nothing in the record explains Dorothy's reasons for including this provision in the deed.

         Melba died intestate in 2012, eight years after her sister.[3] Melba's heirs included six children, including Reginald, and her three grandchildren. The administrator of Melba's estate, Charles W. Hazelwood, Jr., filed a petition for aid and direction seeking a judicial order declaring that the possibility-of-reverter provision in the deed was void as an impermissible restraint on alienation. Edward countered that the provision was a lawful possibility of reverter limited in scope and in time to the life of a single person, Reginald. Id. at 54-55. Rejecting Edward's view, the circuit court held that "the possibility of reverter contained in the Deed of Gift is void and unenforceable under Virginia law" and, thus, would be "hereby stricken from the conveyance." Id. at 34.

         II.

         On appeal, Edward argues that nothing in either Virginia law or any background principle of English common law forbids a landowner from conveying property subject to this type of contingent reversionary interest. We agree.

         A.

         The first premise of property law is that a lawful owner, as a general rule, has the power to convey his real property to whomever he wishes under whatever conditions they agree to. "The exclusive right of using and transferring property, " Chancellor Kent explained, "follows as a natural consequence, from the perception and admission of the right itself." 2 James Kent, Commentaries on American Law 257-58 (1827). At common law, a lawful owner's right to property "consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land." 1 William Blackstone, Commentaries *138; see Restatement (Second) of Property: Donative Transfers div. 1, pt. 2, intro. note (1992) ("The power of the current holder of property to alienate cannot be plenary unless he can hamper the power of future holders to alienate it, either directly or indirectly.").

         When a deed of conveyance uses no "words of limitation, " Virginia law treats it as a transfer of a fee simple interest "unless a contrary intention shall appear." Code § 55-11. Such "contrary intention, " id., could include an express reservation of a contingent reversionary interest. The grantor's right to impose such a condition, however, is not absolute. Centuries of common-law jurisprudence have marked off the legal boundaries of this presumptive right.

         Perhaps the best-known boundary is the historic maxim against unreasonable restraints on alienation. In the late 1400s, Judge Littleton declared void as "against reason" conveyance conditions that denied a grantee the power to "alien" the property conveyed "to any person." Thomas Littleton, Littleton's Tenures, § 360 (Eugene Wambaugh ed., 1903). Lord Coke confirmed this view, stating that under English common law such conditions are "repugnant and against law." Coke upon Littleton § 206b (Thomas Coventry ed., 1830); see also id. § 223a (noting that if a condition "ousts not the feoffee of his power to alien the land whereof the feoffment is made . . . there is no repugnancy to the estate").

         This prohibition, however, did not apply to a condition against alienating to a particular person, "naming his name, or to any of his heirs, or of the issues" of such person, because such a condition "do[es] not take away all power of alienation from the feoffee." Id. (emphasis added). "Similar statements may be found in Year Book cases dating from the 15th century." Restatement (Second) of Property: Donative Transfers div. 1, pt. 2, intro. note (citing J. Gray, Restraints on Alienation § 18 (2d ed. 1895)).

         Most modern courts continue to hold to the ancient view that "a condition in restraint of alienation general as to time and person is void." 3 Thompson on Real Property § 29.05, at 793 (David Thomas ed., 3d ed. 2012); see also 10 Powell on Real Property § 77.02, at 77-7 (Michael Wolf ed., 2016); 1 Raleigh C. Minor, The Law of Real Property § 579, at 658-59 (1908). We, too, follow this common-law principle and have applied it in various contexts. See, e.g., Edwards v. Bradley, 227 Va. 224, 228, 315 S.E.2d 196, 198 (1984) ("[A] ...


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