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46. Who is likely to prevail?
The woman has sued the investor for specific performance.
Two years later, the woman contracted to sell the land to an investor for a price based on a recent appraisal. When the investor's title search revealed the above language in the grantee section of the deed to the woman, the investor refused to close the transaction. The contract was silent as to the woman's title obligation.
A woman acquired land by a deed that contained the following language in the grantee section: «to [the woman], her heirs and assigns, provided, however, that said grantee may not transfer any interest in the land for 10 years from the date of this instrument.»
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D is correct. Absolute restraints on alienation are void, even if they are for a limited amount of time. Here, there is no stated reason in the deed to restrict the woman's ability to sell the property, even for a specified period of time. Therefore, the restraint is void, the investor is in breach of the contract, and the woman is entitled to specific performance.
A is incorrect. The unreasonable restraint of alienation here is void. Any restriction on the transfer of a fee interest is invalid as contrary to the policy of freedom of property disposition. Here, the deed restricted the woman from transferring her interest for 10 years, which would constitute an invalid restraint on alienation.
B is incorrect. A third party beneficiary is a person who will benefit from a contract made between two other parties. The third party beneficiary is not a party to the contract itself, but if the contract is fulfilled, the third party stands to realize a benefit. The woman's heirs are not parties to the contract because they hold a future interest.
C is incorrect. Marketable title is free from reasonable doubt or any sort of threat of litigation. Providing marketable title is an implied promise in a contract when a seller is selling land to a buyer that the seller will deliver marketable title to the buyer at the date of the closing. Providing marketable title is an implied warranty in a land sale contract.