Barnhart v. McKinney

Herd, J.,

concurring and dissenting: I respectfully dissent on the application of the rule against perpetuities and concur on all else in the majority opinion. I am unable to distinguish this case from Henderson v. Bell, 103 Kan. 422, 173 Pac. 1124 (1918). As correctly stated in the majority opinion we must consider a questioned document at the time of its execution to determine the applicability of the rule against perpetuities. This rule of construction precludes the use of the other documents, as relied upon herein to distinguish this case from Henderson. Where a contract expressly binds the parties, their heirs, executors, administrators and assigns, such words as “when Sellers decide to sell or vacate” must apply to the sellers, their heirs, executors, administrators and assigns. I find no authority for holding the death of a real estate title holder vacates his land, in a legal sense.

The rule against perpetuities is a well-established rule of property and should not be summarily amended or abrogated. Many real estate titles are based upon it. Stability of real estate titles is important; in fact, more important than doing equity in one case.

The precedent established by this opinion will be difficult for trial judges to follow and practicing attorneys to use in that it eliminates the rule of law and substitutes some new equitable principles. Equity, like beauty, is in the eyes of the beholder, and should therefore be used only under established rules. I find none of those rules here.

I would affirm the trial court.